This proposed rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, orange and grapefruit handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable oranges and grapefruit beginning on August 1, 2012, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule would increase the assessment rate established for the Committee for the 2012-13 and subsequent fiscal periods from $0.14 to $0.16 per 7/10-bushel carton or equivalent of oranges and grapefruit handled.

The Texas orange and grapefruit marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Texas oranges and grapefruit. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2011-12 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on June 5, 2012, and unanimously recommended 2012-13 expenditures of $1,340,800 and an assessment rate of $0.16 per 7/10-bushel carton or equivalent of oranges and grapefruit handled. In comparison, last year's budgeted expenditures were $1,273,537. The assessment rate of $0.16 is $0.02 higher than the rate currently in effect. The increased assessment rateshould generate sufficient income to cover anticipated expenses, including an increase in advertising and promotion, as well as allow the Committee to replenish funds in its reserves.

The major expenditures recommended by the Committee for the 2012-13 fiscal period include $575,000 for promotion; $489,500 for the Mexican fruit fly control program; and $243,000 for management, administration, and compliance. Budgeted expenses for these items in 2011-12 were $425,000, $564,500, and $250,737, respectively.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Texas oranges and grapefruit. Orange and grapefruit shipments for the 2012-13 fiscal period are estimated at 8.5 million 7/10-bushel cartons or equivalent, which should provide $1,360,000 in assessment income. Income derived from handler assessments would be adequate to cover budgeted expenses. Funds in the reserve (currently $78,090) would be kept within the maximum permitted by the order (approximately one fiscal period's expenses as stated in § 906.35).

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2012-13 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 170 producers of oranges and grapefruit in the production area and 15 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

According to Committee data and information from the National Agricultural Statistical Service, the weighted average grower price for Texas citrus during the 2010-11 season was around $11.30 per box and total shipments were near 4.7 million boxes. Using the weighted average price and shipment information, and assuming a normal distribution, the majority of growers would have annual receipts of less than $750,000. In addition, based on available information, approximately 60 percent of Texas citrus handlers could be considered small businesses under SBA's definition. Thus, the majority of producers and handlers of Texas citrus may be classified as small entities.

This proposed rule would increase the assessment rate established for the Committee and collected from handlers for the 2012-13 and subsequent fiscal periods from $0.14 to $0.16 per 7/10-bushel carton or equivalent of Texas oranges and grapefruit. The Committee unanimously recommended 2012-13 expenditures of $1,340,800 and an assessment rate of $0.16 per 7/10-bushel carton or equivalent handled. The proposed assessment rate of $0.16 is $0.02 higher than the 2011-12 rate. The quantity of assessable oranges and grapefruit for the 2012-13 fiscal period is estimated at 8.5 million 7/10-bushel cartons or equivalent. Thus, the $0.16 rate should provide $1,360,000 in assessment income and be adequate to meet this year's expenses.

The major expenditures recommended by the Committee for the 2012-13 fiscal period include $575,000 for promotion; $489,500 for the Mexican fruit fly control program; and $243,000 for management, administration, and compliance. Budgeted expenses for these items in 2011-12 were $425,000, $564,500, and $250,737, respectively.

The Committee reviewed and unanimously recommended 2012-13 expenditures of $1,340,800, which included increases in promotional activities. The Committee considered proposed expenses and recommended increasing the assessment rate to cover the increase in the advertising and promotion program, as well as to allow the Committee to replenish funds in its reserve.

Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Budget and Personnel Committee, and the Market Development Committee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research and promotion projects to the Texas citrus industry. The assessment rate of $0.16 per 7/10-bushel carton or equivalent of assessable oranges and grapefruit was then determined by dividing the total recommended budget by the quantity of assessable oranges and grapefruit, estimated at 8.5 million 7/10-bushel cartons or equivalent for the 2012-13 fiscal period. This is approximately $20,700 above the anticipated expenses, which the Committee determined to be acceptable.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2012-13 season could range between $8.98 and $16.35 per 7/10-bushel carton or equivalent of oranges and grapefruit. Therefore, the estimated assessment revenue for the 2012-13 fiscal period as a percentage of total grower revenue could range between 1 and 2 percent.

This proposed action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the marketing order.

In addition, the Committee's meeting was widely publicized throughout the Texas citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 5, 2012, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submitcomments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189 Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large Texas orange and grapefruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Laurel May at the previously-mentioned address in theFOR FURTHER INFORMATION CONTACTsection.

A 10-day comment period is provided to allow interested persons to respond to this proposed rule. Ten days is deemed appropriate because: (1) The 2012-13 fiscal period began on August 1, 2012, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable oranges and grapefruit handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

For the reasons set forth in the preamble, 7 CFR part 906 is proposed to be amended as follows:

See the “Additional Information” section for information on how to comment on this proposal and how the FAA will handle comments received. The “Additional Information” section also contains related information about the docket, privacy, the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with prescribing regulations required in the interest of safety for the design and performance of aircraft; regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft; and regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it would prescribe new safety standards for the design of transport category airplanes.

This proposed rule would adopt new standards for COGs installed in transport category airplanes. These proposed new standards, based on the LOARC's recommendations, would apply to future applications for type certificates, address potential security vulnerabilities with those devices, and provide performance-based options for acceptable COG installations.

The incorporation of security measures into an airplane design is a significant development in aviation safety that was initiated over 20 years ago. The International Civil Aviation Organization (ICAO) adopted standards to address several key elements of airplane design to reduce its vulnerability to terrorist acts following the bombing of a Pan American 747 airplane near Lockerbie, Scotland in 1988. These standards were adopted as Amendment 97 to Annex 8 of the 1944 Convention on Civil Aviation.

In January 2002, the FAA adopted the first regulations that address security vulnerabilities in airplanes. The FAA later incorporated all of the ICAO standards into regulations by Amendment 25-127 to Title 14, Code of Federal Regulations (14 CFR) part 25. That amendment complemented other rulemaking initiatives that address security measures for flightdeck doors and added a new § 25.795, Security considerations. ICAO does not have recommended practices related to COGs. Nevertheless, the FAA has determined that COGs present an unacceptable vulnerability and has exercised its authority to take remedial action to correct this vulnerability in airplane design.1

The FAA became aware of a security vulnerability with certain types of oxygen systems installed inside the lavatories of most transport category airplanes operating under 14 CFR part 121, as well as certain airplanes operating under part 129. As a result, in April 2011, the FAA issued AD 2011-04-09, mandating that these oxygen systems be rendered inoperative until the vulnerability could be eliminated.2 However, by rendering the oxygen systems inoperative to comply with the AD, the airplanes do not comply with the requirements of §§ 25.1447, 121.329, and 121.333. The AD contained a provisional allowance to permit noncompliance in the lavatories from those specific requirements.

To further address that situation, the FAA also issued SFAR 1113 to allow continued operation, delivery, and modification of affected airplanes, despite their non-compliance with the above-noted regulations. The AD and the SFAR (while still in effect) are interim measures to minimize the disruption to air commerce while the development of permanent solutions, including this proposed rule, are underway.

In addition, the FAA chartered the LOARC shortly after issuing SFAR 111. The LOARC was tasked to make recommendations for new standards that would ensure the installation of a safe and secure COG system, including the best approach to implement those standards. The LOARC's recommendations also included the key issues involved in making a COG secure, and a summary of how those issues may affect implementation of new standards. The LOARC's recommendations are discussed in the “Lavatory Oxygen Aviation Rulemaking Committee” section of this NPRM. Those LOARC recommendations also form the basis for this proposal.

The minimum performance requirements for oxygen supply and oxygen mask presentation are contained in §§ 25.1443 and 25.1447. The supplemental oxygen systems are necessary safety equipment in the event of loss of cabin pressure. Each occupant is required to have a supplemental oxygen supply immediately available if cabin pressure drops to a certain level. The regulations specifically require lavatories to be equipped with two oxygen masks connected to oxygen supply terminals and, for airplanes flying above 30,000 feet, automatic presentation of the masks to the occupants. Two masks are required inside a lavatory to address the situation where one person may be assisting another, such as an adult assisting a small child. The quantity of oxygen available to each occupant is based on the route flown and how quickly the airplane can descend to an altitude that does not require supplemental oxygen.

Lavatory oxygen systems are generally similar to the systems provided for passenger and flight attendant use in the cabin. The intent of the supplemental oxygen requirements in 14 CFR part 25 is reinforced in the operational requirements of §§ 121.329 and 121.333, although neither section specifically references lavatories.

The regulations do not specify the use of COGs as an oxygen supply. However, COGs are common because they tend to provide a sufficient oxygen supply while retaining the optimum size, weight, and maintainability for most operations. Because COGs produce oxygen through a chemical reaction that generates heat, there are requirements in § 25.1450 to ensure that adjacent materials and systems are protected from damage and persons are protected from injury. Surface temperatures can reach temperatures up to 500 degrees Fahrenheit, so the COG often has a protective shroud installed.

In issuing AD 2011-04-09 and SFAR 111, the FAA carefully considered the safety ramifications of removing supplemental oxygen from the lavatories of a significant portion of thecommercial fleet. The FAA conducted a risk analysis to assess the safety implications of temporarily4 not having supplemental oxygen available inside lavatories. To support the risk assessment, earlier studies involving passengers' use of supplemental oxygen were reviewed.

Several years ago in an unrelated initiative, the FAA tasked the ARAC to make recommendations for safety standards when airplanes operate in high altitudes. As part of its efforts, the ARAC did a comprehensive assessment of the frequency and nature of the need for supplemental oxygen systems in service.5 The ARAC identified 2,800 instances over a 40-year period and categorized them by cause, severity, and consequence. The majority of these instances were caused by malfunctions of the cabin pressurization system. However, in none of those 2,800 instances was there a loss of life due to lack of oxygen. The ARAC used these data to make recommendations to the FAA for future rulemaking not related to this action.

The FAA reviewed the service history since those ARAC recommendations were made and found that the types and frequencies of incidents, as well as their causes, are consistent with the historical record. The relative risks and service history have not changed in any significant way since the ARAC recommendations were issued. With respect to SFAR 111, the assessment was limited to the lavatories, as opposed to the earlier ARAC task that applied to the entire airplane. The lavatories are sporadically occupied during flight and by a small number of passengers at any given time. This limits the potential impact on safety.

The ARAC found the frequency of the types of severe occurrences necessitating the use of supplemental oxygen was around 10−8/flight-hour for causes other than a malfunction of the pressurization system. These malfunctions tend to be slower losses of pressure, or are identified at lower altitudes, and therefore, they are not as critical for this situation. For the purposes of the assessment leading to SFAR 111, the FAA assumed the probability of an occupied lavatory is 50%. The probability of an event when supplemental oxygen is physiologically required is around 5×10−9/flight-hour. Since SFAR 111 was issued, there has been one decompression event due to a mechanical failure involving oxygen mask deployment and emergency descent. In that instance, no occupants were in a lavatory and no persons suffered any injury.

As discussed above, the FAA chartered the LOARC to obtain recommendations from the affected public on what the new certification standards for COGs should be, as well as the best way to implement them. Specifically, the LOARC was tasked to:

(1) Establish criteria for in-service, new production and new type design airplanes, preferably in the form of performance standards, for safe and secure installation of lavatory oxygen systems;

(2) Determine whether the same criteria should apply to the existing fleet and to new production and type designs;

(3) Establish what type of safety assessment approach should be used (e.g., in accordance with SAE International Document ARP55776 or § 25.1309), and define the content and procedures of the safety assessment;

(4) Determine whether tamper resistance, active tamper evidence, or different system design characteristics are equivalent options;

(5) Develop guidance as necessary to satisfy the recommended criteria for each system design characteristic as appropriate; and

(6) Consider the pros and cons of different implementation options and recommend a schedule(s) for implementation with the advantages and disadvantages identified.

The LOARC identified five key subjects to focus on to develop its recommendations and fulfill its charter. Those subjects were:

• Design Considerations—identifying and characterizing the design constraints and key factors affecting an installation.

• Security Standards—identifying the necessary components of a secure installation, in terms of both new designs and for retrofit.

• System Performance—identifying the factors that affect system performance in general and how modifications to enhance security might affect system performance.

• Implementation Considerations—identifying the major factors in being able to implement the new requirements into the fleet as expeditiously as practicable, as well as making assessments of how long certain actions will take.

• Other Affected Areas—characterizing the parameters that resulted in the determination of a security vulnerability for lavatory COG installations and establishing criteria for evaluating other installations against those characteristics.

A sub-group was formed for each of the focus areas. Each subject was explored in detail with respect to how it would affect the content of new standards and the ability to implement those new standards into the existing fleet. Using the inputs from the sub-groups, the LOARC made recommendations in a final report, which is available in the docket for this rulemaking.

Some of the significant findings of the LOARC are summarized below. The LOARC concluded that security could be achieved through tamper-resistance alone, through a combination of tamper-resistance and active tamper-evidence (e.g., an alarm), or by switching to a different means of supplying oxygen in lieu of a COG. For new type designs, any of these approaches would be feasible, and some could be adopted with minimal impact on cost or weight.

As discussed below, the FAA is addressing the existing U.S. fleet via an AD. Although this proposal would not affect the existing U.S. fleet, the proposed standards would likely be used by international aviation authorities in approving installations for the retrofit of those fleets covered by their regulations. The discussion of the LOARC's conclusions regarding the implications for retrofit is included here, because it may aid the international community in reintroducing supplemental oxygen systems into affected airplane lavatories. From the standpoint of the existing U.S. fleet, the LOARC concluded that if a COG were to continue to be used, the majority of installations would likely require using a combination of the tamper-resistance and tamper-evidence approaches.

Incorporation of an active system to provide tamper-evidence would significantly increase complexity, cost, and time in implementing new designs into the existing U.S. fleet compared to other approaches for addressing the security concerns with COGs. This is because such a system must demonstrate a suitable level of reliability and not be susceptible to tampering. It would also require intervention on the part of the crew, which would result in new crewprocedures and training. In addition, most of the modification work must be done on the airplane, which can lead to unscheduled time out of service. All of these factors contribute to the complexity of the design, the time it takes to install and certificate the design, and the costs associated with incorporating the design.

The LOARC concluded that switching to a different means of supplying oxygen might be the most efficient solution in a significant number of cases. However, because the COG is an optimized design for this application, there are currently no other types of systems available for the existing fleet. Nonetheless, some design approval holders may take this approach to avoid the issues associated with the active tamper-evidence approach.

The LOARC further concluded that there is limited space available to modify existing designs or to add features. There is some correlation between the size of the airplane and the space available, but in almost all cases, there are very small tolerances on the size and shape of an oxygen source (COG or other) that will fit. Similarly, although moving the supplemental oxygen supply to a different location may be feasible for new designs, relocating the supplemental oxygen supply in existing fleets is limited by the space available in existing designs. Relocating the supplemental oxygen supply can also complicate activating the oxygen flow, since that is generally accomplished by pulling on the oxygen mask. Nevertheless, the LOARC concluded that there are practical design solutions, and, as discussed below under “Related Actions,” the FAA has accepted the LOARC's recommendations.

Irrespective of the method chosen to provide supplemental oxygen, there may be means to indirectly mitigate the space constraints by changing the way in which the supplemental oxygen dosage is measured. Historically, oxygen systems have provided a constant tracheal partial pressure of oxygen in accordance with § 25.1443. In order to maintain the requisite partial pressure, the system supplies oxygen at a given rate for a time period as determined by the routes being flown.

Recent developments in system technology have made a more direct approach feasible for meeting the physiological oxygen requirement. This approach measures the oxygen saturation level in the blood, known as SaO2, instead of tracheal partial pressure. Because SaO2is more directly indicative of whether adequate oxygen is being supplied, this approach has merit. Further, for a system that can maintain adequate SaO2, the total quantity of oxygen may be reduced, making the storage vessel smaller than one based on tracheal partial pressure. Using a smaller storage vessel makes such installations more practical by utilizing the existing locations. While there is no regulatory change proposed to incorporate SaO2, the FAA will consider this approach as a basis for a finding of an equivalent level of safety to the oxygen quantity requirements of § 25.1443, Minimum mass flow of supplemental oxygen.

As previously discussed, the FAA began incorporating security measures into the airplane design in 2002. This proposal is keeping with that effort and reflects additional knowledge the FAA has acquired since then. The FAA recently superseded AD 2011-04-09 with AD 2012-11-09, Various Transport Category Airplanes (77 FR 38000, June 26, 2012) to include terminating action for installations meeting requirements of this proposal. To enable affected operators and modifiers to obtain approval of COG installations in advance of finalizing this proposed rulemaking, the FAA has also issued Policy Statement PS-ANM-25-04 regarding COGs using these proposed standards (based on the LOARC recommendations) as guidance for methods of compliance.7 The policy statement enables operators to satisfy the requirements in AD 2012-11-09 while at the same time restoring a supplemental oxygen supply to lavatories.

The current requirements for COGs relate primarily to protecting the airplane and passengers from the heat produced by the generators. These standards are in § 25.1450 and will continue to apply. The requirements of § 25.1450 address safety requirements for COGs when correctly installed and operating, as well as predictable failures. These existing requirements do not consider the deliberate misuse of a COG, or the potential effects of that misuse.

As previously discussed, § 25.795 addresses the incorporation of security measures into an airplane design, following similar standards adopted by ICAO. Currently, § 25.795 does not address COGs, as they were not considered at the time that regulation was adopted. Nevertheless, since the issues of concern stem from security considerations, the FAA has determined that the most logical location for these new COG standards is in § 25.795, Security considerations.

Again, the FAA is proposing standards based on recommendations from the LOARC. This proposal would amend § 25.795 by requiring that each COG or its installation must be designed to be secure by meeting at least one of the following four conditions: (1) Provide effective resistance to tampering; (2) provide an effective combination of resistance to tampering and active tamper-evident features; (3) installing in a location or manner where any attempt to access the COG would be immediately obvious; and (4) by a combination of these approaches, provided the Administrator finds it to be a secure installation. These conditions are discussed in further detail below.

There are two basic approaches to providing a secure lavatory COG installation: make a fully tamper-resistant installation, or incorporate a combined tamper-resistance and active tamper-evidence approach. Either of these approaches would be acceptable, but they involve different considerations.

A COG that is inaccessible would be considered a tamper-resistant COG for the purposes of § 25.795(d). This could be accomplished by locating the COG in an inaccessible area, or installing it in a more conventional location in such a way that access to it is not possible. The ARC considered whether to characterize such an installation as “tamper proof” rather than “tamper resistant.” However, a literal interpretation of “tamper proof” was considered to be too stringent, since there would always be some conceivable, albeit unreasonable, method to overcome tamper-proof features. Nonetheless, where tamper resistance is the sole method of providing security, it is intended that the features be very robust.

If the installation cannot rely solely on a tamper-resistance approach, it is acceptable to incorporate a combined tamper-resistance and active tamper-evidence approach, as previously stated. Using this combined approach would also necessitate changes to crew procedures and concurrent training to provide the same level of security. In this case, it is intervention that ultimately prevents misuse of the generator, so crew involvement isessential. The use of a tamper-evidence approach alone is unacceptable, since this relies entirely on intervention and does not improve the security of the COG itself. Neither the LOARC nor the FAA considers a tamper-evidence approach alone to adequately provide the needed security.

Another method of providing a secure installation is by locating the COG where any attempt to access it would be immediately obvious. In other words, the COG might be in a location where it is accessible, but anyone attempting to gain access to it would be immediately noticed before actually gaining access. This method would not be feasible inside lavatories since they are inherently isolated from view. This method is not the same as a sole tamper-evidence approach, which is only effective after access has begun and relies entirely on subsequent intervention.

There may be any number of combinations used of tamper-resistance and tamper-evidence approaches that would be effective. Applicants would need to make specific proposals and obtain FAA approval for a given approach. In addition, there may be methods of providing a secure installation that involve other elements that would also be acceptable but are not yet defined. The intent of these proposed requirements would allow for those possibilities, while at the same time set a clear performance goal.

In addition, acceptable methods of employing tamper-resistance and tamper-evidence approaches are discussed in proposed AC 25.795, Chemical Oxygen Generator Security Requirements. A copy of AC 25.795 will be placed in the docket for this action.

The FAA and the LOARC recognize that the unique nature of COGs drives the identified security vulnerability. Although not proposed in this action, there are other means of delivering supplemental oxygen, such as a stored gas system (either centrally or locally installed), that could eliminate the security vulnerability. These systems are currently used in certain airplane types and could be easily incorporated for new airplane type designs.

Although the installation of COGs in lavatories prompted the various rulemaking activities discussed in this proposal, the LOARC recommended applying the new standards to COG installations anywhere on the airplane, and the FAA agrees with this recommendation. The LOARC concluded that if the characteristic that makes the COG a risk exists in locations other than in lavatories, then those locations should also be subject to the same approval criteria. The LOARC did not attempt to identify any specific locations, but it developed assessment criteria to identify such locations. However, since lavatories are currently without supplemental oxygen, those are the locations with the greatest interest. The LOARC also concluded that the solution for other areas might be different than for lavatories. This information is also included in the above-noted proposed AC 25.795.

The FAA has superseded AD 2011-04-09, with AD 2012-11-09 which includes requirements to retrofit the fleet of airplanes affected by AD 2011-04-09. Superseding AD 2012-11-09 also applies to airplanes in production for which compliance relief was provided by SFAR 111. The expiration of SFAR 111 will correspond to the compliance date of AD 2012-11-09, since the relief provided by the SFAR will no longer be necessary once operators have complied with that AD. As noted earlier, the FAA has issued Policy Statement PS-ANM-25-04 to facilitate the incorporation of designs meeting these proposed requirements. AD 2012-11-09 references that policy as a potential means of compliance.

The FAA does not intend any further mandate to retrofit oxygen generator systems because only lavatory COG installations that meet the criteria in Policy Statement PS-ANM-25-04 or in this NPRM would be approved. This means that even if there are some changes between this NPRM and the final rule, designs approved prior to the effective date of the final rule, in accordance with the policy, would not be affected. This applies to the design approval, not just to the airplanes on which the design is installed prior to the effective date of the final rule. Therefore, a design approved as an alternative means of compliance to AD 2011-04-09, or as a means of compliance to AD 2012-11-09, will still be approved for installation on airplanes after the effective date of this rule.

All affected airplanes need to be modified either in accordance with the standards in this proposed rule, or via a prior approval as discussed in Policy Statement PS-ANM-25-04 before the expiration date of SFAR 111. For new design approvals on airplanes subject to AD 2012-11-09, or applications for type design changes after the effective date of the final rule, the FAA will use the requirements of the newly adopted § 25.795(d) as the approval basis. For example, if a design is approved per Policy Statement PS-ANM-25-04, and an applicant applies to amend the design after the effective date of the final rule, the amended design must comply with the requirements of § 25.795(d). For transport airplanes that are not subject to proposed AD 2012-NM-004-AD (e.g., all-cargo airplanes), §§ 21.17 and 21.101, as applicable, will be used to determine whether the requirements of § 25.795(d) must be met.

Section 25.1450, which contains the general standards for COGs, would be revised to refer to the new § 25.795(d), in addition to the existing standards for COGs.

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States (U.S.). In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 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 $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule.

In conducting these analyses, FAA has determined that this proposed rule: (1) Would have benefits that justify its costs; (2) would not be an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) would not be “significant” as defined in DOT'sRegulatory Policies and Procedures; (4) would not have a significant economic impact on a substantial number of small entities; (5) would not create unnecessary obstacles to the foreign commerce of the U.S.; and (6) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order allows that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this proposed rule. The reasoning for this determination follows:

This proposed rule would apply only to future type-certificated, large transport airplane models. It would not affect any current airplanes or future airplanes built under an existing type certificate. The proposed requirements are technologically feasible, as evidenced by two new type certificate programs (the Boeing 787 and the Airbus 350) that include designs that would be in compliance with this proposed rule. The FAA does not believe that compliance with the proposed rule for future type certificates would require extensive airplane redesign.

The FAA also believes that there would be little, if any, production airplane cost increases from complying with these proposed requirements. The FAA has learned that the emergency oxygen systems technology used in the Boeing 787 and the Airbus 350 could be transferrable to future type-certificate designs. Further, these technologies provide greater airline operational flexibility because they would allow the airplane to carry variable amounts of oxygen, which is not currently the case with COGs. Finally, future type-certificate designs could still use the COG for emergency oxygen in other parts of the airplane with an alternative oxygen source within the lavatories. The FAA requests comments on its conclusions and these issues.

The primary benefit from this proposed rule is that it would allow the airplane to continue to provide supplemental oxygen to individuals in lavatories during emergencies while ensuring that individuals in lavatories could not tamper with the supplemental oxygen system.

The FAA believes that the proposed rule would impose minimal costs because it would only apply to new type-certificated airplane models so that the manufacturer would be able to design the most cost-effective emergency oxygen system for the model before construction would start on the first airplane. Again, the Boeing 787 and the Airbus 350 are two new type-certificate projects which include designs for supplemental oxygen systems that would be in compliance with this proposed rule. The FAA believes that similar emergency oxygen systems could be designed for future type-certificated airplanes at a minimal cost.

The FAA requests comments on this initial conclusion of minimal expected costs for future type-certificated airplane models.

This rule affects all manufacturers of large transport category, certificated airplanes under part 25.

The primary source of information is the LOARC, which included part 25 airplane manufacturers, other aviation safety regulatory agencies, manufacturers of oxygen generating systems, airlines, a pilot union, and a flight attendant union.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed rule would have a significant economic impact on a substantial number of small entities. If the agency determines that it would, the agency must prepare an initial regulatory flexibility analysis as described in the RFA. However, if an agency determines that a proposed rule would not have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify, and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The Small Business Administration defines a small airplane manufacturer as one that employs fewer than 1,500 people. As all the affected airplane manufacturers employ more than 1,500 people, this proposed rule would not affect small entities. Therefore, the FAA certifies that this proposed rule, if promulgated, would not have a significant impact on a substantial number of small entities. Specifically, the FAA requests comments on whether the proposed rule would create any specific compliance costs unique to small entities. Please provide detailed economic analysis to support any cost claims. The FAA also invites comments regarding other small-entity concerns with respect to this proposed rule.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States (U.S.). Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the U.S., so long as the standards have a legitimate domestic objective, such as protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and determined that it would improve safety and, therefore, is not an unnecessary obstacle to international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by state, local, and tribal governments, in the aggregate, or by the private sector; sucha mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these proposed regulations.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

See the “Regulatory Evaluation” discussion in the “Regulatory Notices and Analyses” section elsewhere in this preamble.

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.

Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in theFOR FURTHER INFORMATION CONTACTsection of this document, and marked as proprietary or confidential. If submitting information on a disk or CD ROM, mark the outside of the disk or CD ROM, and identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), when the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.

An electronic copy of rulemaking documents may be obtained from the Internet by—

1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visiting the FAA's Regulations and Policies Web page athttp://www.faa.gov/regulations_policiesor

3. Accessing the Government Printing Office's Web page athttp://www.gpoaccess.gov/fr/index.html.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of Title 14, Code of Federal Regulations as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2012-1316; Directorate Identifier 2012-NM-186-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On August 31, 2012, we issued AD 2012-18-13, Amendment 39-17190 (77 FR 57990, September 19, 2012), for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. (AD 2012-18-13 superseded AD 99-08-23, Amendment 39-11132 (64 FR 19879, April 23, 1999).) That AD requires repetitive inspections to detect cracking in the web of the aft pressure bulkhead at body station 1016 at the aft fastener row attachment to the “Y” chord, various inspections for discrepancies at the aft pressure bulkhead, and related investigative and corrective actions if necessary. That AD resulted from several reports of fatigue cracking at that location. We issued that AD to detect and correct such fatigue cracking, which could result in rapid decompression of the fuselage.

Since we issued AD 2012-18-13, Amendment 39-17190 (77 FR 57990, September 19, 2012), we have determined that a certain inspection and repair required by paragraph (l) of AD 2012-18-13 must be clarified.Paragraph (l) of the existing AD specifies to inspect for “incorrectly drilled fasteners and elongated fasteners” (as well as for cracking and corrosion), and also that “if any crack, incorrectly drilled fastener, elongated fastener, or corrosion is found, before further flight, repair the web * * * .” However, the intent of paragraph (l) of AD 2012-18-13 with regard to this inspection is to inspect the fastener holes, not the fasteners. This also reflects the corresponding instructions specified in Boeing Alert Service Bulletin 737-53A1214, Revision 4, dated December 16, 2011 (which is the appropriate source of service information for accomplishing the actions required by paragraph (l) of AD 2012-18-13). It is not possible to inspect “fasteners” using the procedures specified in Part III of the Accomplishment Instructions of that service bulletin. That is, the inspection procedures in that service bulletin apply to “fastener holes” and cannot be used to inspect “fasteners.” Therefore, we have revised paragraph (l) of this proposed AD to specify to inspect, in part, for “incorrectly drilled fastener holes” and “elongated fastener holes,” as well as to specify that “if any crack, incorrectly drilled fastener hole, elongated fastener hole, or corrosion is found, before further flight, repair * * *.”

In addition, we also find it necessary to revise certain paragraph references related to the terminating action, as specified in paragraph (s) of AD 2012-18-13, Amendment 39-17190 (77 FR 57990, September 19, 2012). Paragraph (s) of AD 2012-18-13 states that accomplishing the requirements of paragraphs (k) through (q) of that AD terminates the requirements of paragraphs (g) through (j) of that AD. However, we have determined that it is only necessary to accomplish the requirements of paragraph (k) of that AD in order to terminate the requirements of paragraphs (g) through (j) of that AD. We have revised paragraph (s) of this AD accordingly.

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

This proposed AD would retain all requirements of AD 2012-18-13, Amendment 39-17190 (77 FR 57990, September 19, 2012). This proposed AD would clarify certain actions in paragraph (l) of this proposed AD, would revise certain paragraph references related to the terminating action in paragraph (s) of this proposed AD, and would add new paragraph (u)(5) to this proposed AD as a new provision of the alternative method of compliance (AMOC) paragraph to allow the continued use of AMOCs approved previously in accordance with AD 2012-18-13.

We estimate that this proposed AD affects 566 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary on-condition inspections that would be required based on the results of the initial inspection. We have no way of determining the number of aircraft that might need these inspections:

We have received no definitive data that would enable us to provide cost estimates for the crack repairs specified in this proposed AD.

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

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

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2012-1217; Directorate Identifier 2012-NE-39-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We received a report of a fire warning on an IAE V2525 turbofan engine shortly after takeoff. The engine experienced an under-cowl fire and a commanded in flight shutdown. Investigation revealed that this event was caused by failure of the No. 4 bearing internal scavenge tube due to high stress. A misalignment of the No. 4 bearing external scavenge tube was noted to be a contributing factor. This proposed AD would direct the replacement of all No. 4 bearing internal scavenge tubes, P/N 2A2074-01. This proposed AD would also require checking the alignment of the No. 4 bearing external scavenge tube, P/N 6A5254, and if it fails the check, replacement of the external scavenge tube. These conditions, if not corrected, could result in engine fire and damage to the airplane.

We reviewed IAE Service Bulletin (SB) No. V2500-ENG-72-0630, Revision 1, dated September 20, 2012. The SB describes procedures for replacement of the No. 4 bearing internal scavenge tube and for verification of proper alignment of the No. 4 bearing external scavenge tube.

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

This proposed AD would require the replacement of the No. 4 bearing internal scavenge tube, P/N 2A2074-01, at the next combustor module-level exposure. This AD would also require verification of the alignment and installation of the No. 4 bearing external scavenge tube, P/N 6A5254, relative to the tube-to-boss elbow, P/N 2A2514 or P/N 2A3951-01, on the No. 4 bearing internal scavenge tube, P/N 2A2074-01.

The SB requires replacement of the No. 4 bearing internal scavenge tube, P/N 2A2074-01, at each combustor module-level exposure. This AD would require replacement at each combustor module-level exposure after 10,000 cycles.

We consider this proposed AD interim action. The design approval holder is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

We estimate that this proposed AD would affect 123 engines installed on airplanes of U.S. registry. We estimate that it would take 1.5 hours per engine to replace the No. 4 bearing internal scavenge tube, and 3 hours per engine to replace the No. 4 bearing external scavenge tube. Required parts would cost $25,251 per engine. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,152,921.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

Public Scoping Meetings:NOAA intends to conduct a series of public scoping meetings to collect public comments. These meetings will be held on the following dates and at the following locations and times:

Date:January 24, 2013.

Location:Bodega Bay Grange Hall.

Address:1370 Bodega Avenue, Bodega Bay, CA 94923.

Time:6 p.m.

Date:February 12, 2013.

Location:Point Arena High School.

Address:185 Lake Street, Point Arena, CA 95468.

Time:6 p.m.

Date:February 13, 2013.

Location:Gualala Community Center.

Address:47950 Center Street, Gualala, CA 95445.

Time:6 p.m.

I. Background

The Commission issued the Appliance Labeling Rule (“Rule”) in 1979,1 in response to a directive in the Energy Policy and Conservation Act of 1975 (EPCA).2 The Rule requires energy labeling for major home appliances and other consumer products, to help consumers compare competing models. When first published, the Rule applied to eight categories: refrigerators, refrigerator-freezers, freezers, dishwashers, water heaters, clothes washers, room air conditioners, and furnaces. The Commission subsequently expanded the Rule's coverage to include central air conditioners, heat pumps, plumbing products, lighting products, ceiling fans, and televisions. The Commission is currently conducting a regulatory review of the Rule.3

The Rule requires manufacturers to attach yellow EnergyGuide labels on many of these products, and prohibits retailers from removing the labels or rendering them illegible. In addition, the Rule directs sellers, including retailers, to post label information on Web sites and in paper catalogs from which consumers can order products. EnergyGuide labels for covered appliances must contain three key disclosures: estimated annual energy cost (for most products); a product's energy consumption or energy efficiency rating as determined from Department of Energy (DOE) test procedures; and a comparability range displaying the highest and lowest energy costs or efficiency ratings for all similar models. For energy cost calculations, the Rule specifies national average costs for applicable energy sources (e.g.,electricity, natural gas, oil) as calculated by DOE. The Rule sets a five-year schedule for updating range of comparability and annual energy cost information.4 The Commission updates the range information based on manufacturer data submitted pursuant to the Rule's reporting requirements.

As discussed below, the Commission proposes to update the comparability ranges (Appendices A-J to Part 305) and national average energy cost figures (Appendix K to Part 305) for many EnergyGuide labels consistent with its five-year schedule. This Notice also contains several minor, proposed revisions and updates to the label's content, some of which were suggested by commenters as part of the Commission's ongoing regulatory review. To avoid requiring multiple label revisions within a short time period, the Commission proposes to require these label content changes concurrently with the range updates. Finally, the Commission proposes to grant a request from the Association of Home Appliance Manufacturers (AHAM) seeking an exemption related to labeling requirements for refrigerators, refrigerator-freezers, and freezers (hereinafter referred to as “refrigerators”), and clothes washers toaddress recent DOE test procedure changes.

In accordance with the Rule's five-year schedule for label updates, the Commission publishes proposed revisions to the comparability range and energy cost information for many products bearing EnergyGuide labels.5 The comparability ranges (i.e.,scales) show the highest and lowest energy costs or energy efficiency ratings of models similar to the labeled product. The Commission derives these ranges from annual data submitted by manufacturers.6 In addition, the Commission is updating the average energy cost figures (e.g.,12 cents per kWh) manufacturers must use to calculate a model's estimated energy cost for the label based on national average cost figures published by DOE.7 To effect these changes, the Commission proposes amendments to the applicable tables in the Rule's appendices. Manufacturers must begin using this new information within 90 days after publication of a final notice in this proceeding. To aid manufacturers in transitioning to the new ranges, FTC staff will provide sample label template files on its Web site.8

At this time, the Commission does not propose to alter range and cost information for EnergyGuide labels on four product categories (refrigerators, clothes washers, furnaces and central air conditioners, and televisions) given upcoming DOE regulatory changes applicable to those products.9 Instead, the Commission proposes waiting to synchronize the changes with the impending DOE regulations. By doing so, the Commission would avoid several label changes in a short time period, a practice that could confuse consumers and burden manufacturers.

In addition to the proposed range and cost updates, the proposed amendments contain five minor label changes to simplify and improve the disclosures. The Commission also seeks comment on the possible elimination of range information on television labels. Finally, the Commission seeks comment on the potential increase in the frequency of changes to range and cost information on all EnergyGuide labels.

First, consistent with recently implemented FTC labeling requirements for light bulb and television labels,10 the proposed rule rounds to the nearest cent the national average electricity (12 cents per kWh) and natural gas ($1.06 per therm) cost figures (in Appendix K) used to calculate the label's estimated annual operating (energy) cost. In the past, the Rule has expressed these figures as a fraction of a cent (e.g.,11.85 cents per kWh). A cost figure rounded to cents should be more familiar to consumers and should not have any negative impact on the label's utility because any differences in cost from such rounding will be very small and apply to all models.11

Second, also consistent with the recent television and light bulb labeling requirements, the proposed amendments further simplify the label's cost disclosure by eliminating reference to the cost rate's year in § 305.11(f). Currently, the label identifies the year of the underlying energy cost rate (e.g.,“based on a 2007 national average electricity cost of 10 cents per kWh”). This date remains on the label for five years. For example, labels for a product introduced in 2011 state that the cost figure derives from a 2007 national average. However, because energy rates can increase and decrease from year to year, the benefit of disclosing this detail on the label does not appear significant. More importantly, this disclosure could cause confusion. For instance, the “2007” reference in the example above may incorrectly suggest to some consumers that the product itself was produced in 2007. To avoid these problems, the Commission proposes to eliminate the reference to the year. The label would simply read “based on a national average electricity cost of * * *.”

Third, based on comments in the ongoing regulatory review for the Rule, the Commission proposes to include a new disclosure on room air conditioners (§ 305.11(f)) explaining that the cost estimate is based on an assumed 750 hours of operation a year.12 Similar estimates already appear on other labels (e.g.,four loads per week for dishwashers and five hours per day for televisions). This change should help consumers gauge the product's estimated energy cost in the context of their own use. Fourth, the amendments replace the term “operating cost” with “energy cost” on EnergyGuide labels for appliances (§ 305.11(f)). The term “energy” ties the disclosure directly to the label's purpose (i.e.,disclosing the product's energy use) and is consistent with new labels for televisions and light bulbs. Finally, the amendments make a conforming change to the Web site address on the label, fromwww.ftc.gov/appliancestowww.ftc.gov/energy.

In addition to these minor changes, the Commission seeks comment on whether to retain range information on television labels.13 In comments related to the regulatory review of the overall Rule, the Consumer Electronics Association (CEA) argued that the comparability ranges on the EnergyGuide labels become obsolete soon after they are issued because the television market changes so frequently.14 As a result, the estimated energy costs for many models falloutside the range depicted on the label, limiting the label's utility. CEA also noted that, in lieu of the ranges on labels, consumers can rely on other sources, including consumer and trade publications and product reviews, to obtain comparative energy information for televisions. In response, the Commission seeks comment on whether to eliminate range information from future updates of the television label. Comments should address whether range information is useful, whether the model's energy cost information provides an adequate comparative tool for consumers shopping in stores and online, and whether there are sufficient alternatives to provide comparability information to consumers.

Finally, the Commission seeks comment on whether to update range and cost information more frequently than every five years.15 In comments on the regulatory review, several energy-efficiency organizations suggested that the FTC follow a three-year schedule to update national average energy cost figures and the comparison ranges for most products. They also recommended a two-year schedule for products with rapidly changing efficiencies and quicker sell-through periods, such as televisions.16 The commenters argued that the current schedule fails to keep pace with efficiency improvements of new models. Similarly, in their view, the five-year schedule does not update the label's average cost figures frequently enough. In support of these observations, the commenters noted recent dishwasher market changes brought on by new DOE standards as well as an approximately 10% increase in national average electricity costs over the last few years.

In establishing the five-year schedule, the Commission recognized the potential benefits of more frequent changes to cost and range information.17 However, the Commission concluded that the need for consistent label information is paramount and, on balance, deserves greater weight than the need for more frequent updates. In doing so, the Commission focused on the need to minimize frequent label changes, noting that inconsistent cost and range information for competing models in showrooms and catalogs can lead to consumer confusion and a lack of confidence in the label. In the Commission's view, the five-year schedule strikes a reasonable balance between maintaining consistent disclosures and providing frequent updates. Accordingly, the Commission is not proposing to change the current schedule. However, the Commission seeks further comment on whether it should adopt the commenters' suggestions to implement a three-year schedule.

In response to a request from the Association of Home Appliance Manufacturers (AHAM),18 the Commission proposes a conditional exemption and rule amendments for refrigerators and clothes washers. New DOE testing procedures for these products, issued in conjunction with new efficiency standards, change the methods for calculating a model's energy use and, as a result, will trigger substantial changes to the energy information disclosed on EnergyGuide labels.19 To aid consumers in their comparison shopping during this transition, the Commission proposes a distinct label for models tested under the new DOE procedure to be used both during this transition and afterward. In addition, the Commission proposes to allow manufacturers to begin labeling new models using the new DOE test procedures several months before the DOE compliance dates to ease the burden associated with transition to the new test procedures.20

AHAM submitted its request in anticipation of upcoming DOE energy conservation standards and test procedures for refrigerators (effective on September 15, 2014) and clothes washers (effective on March 7, 2015). The new, more stringent conservation standards will render a substantial portion of existing refrigerator and clothes washer models obsolete. In addition, the updated test procedures will yield substantially different results than the current ones. According to AHAM, the new refrigerator test procedure will increase the measured energy use of refrigerators by approximately 14%, though the increase will vary between product classes, manufacturers, and even individual models.21 In addition, the new clothes washer test procedure bases annual energy use estimates on 295 cycles per year (approximately six per week), instead of the current 392 cycles (approximately eight per week), thus reducing stated energy costs on the EnergyGuide labels by about 25%.22

AHAM notes that after manufacturers start to test their products using the new procedures, showrooms and Web sites will contain some models tested under the old procedure and others tested under the new one. In AHAM's view, the resulting mix of EnergyGuide labels could severely hamper consumers in making fair product comparisons.

To help facilitate the transition to the new efficiency standards and to aid shoppers who compare products during this period, AHAM proposed two measures. First, it seeks permission to use the new DOE tests for labeling models introduced prior to DOE's compliance dates. Second, it recommends different, transitional EnergyGuide labels for these models, to help consumers distinguish products tested under the new procedure from those tested under the old one. Specifically, AHAM proposes that new labels contain blue (cyan) text and include the statement: “Blue EnergyGuide Compares Only to Other Models with Blue EnergyGuides (due to new U.S. Government requirements).”23 AHAM's members want to begin using the new test procedures and transitional labels for models introduced after January 1, 2014 for refrigerators, and June 1, 2014 for clothes washers. AHAM also requested that the Commission continue to require this modified label for products tested under the new procedure until DOE makes another substantial change to the test procedure in the future.

AHAM contends that these proposals will reduce burdens associated with upcoming regulatory changes, avoidconsumer confusion, and encourage early introduction of high-efficiency models. The Commission generally agrees. The proposal should reduce burdens by allowing refrigerator and clothes washer manufacturers to roll out new high-efficiency models well before the DOE compliance date and thus avoid the logistical complications associated with designing, producing, and testing many models at the same time.24 In addition, using transitional labels will avoid the display of a misleading mix of test results on EnergyGuide labels. Lastly, early compliance will provide an incentive for manufacturers to introduce models that meet the more stringent energy standards sooner, thus providing consumers with more high-efficiency choices.25

Therefore, the Commission proposes to exempt manufacturers from certain EnergyGuide testing and labeling requirements for new refrigerator and clothes washer models introduced before DOE's compliance dates. Specifically, the Commission proposes to grant a conditional exemption from the Rule's requirement that, for purposes of the EnergyGuide label, manufacturers use the estimated annual energy consumption derived from the test procedures presently required by DOE.26 By granting the requested exemption, the Commission would allow manufacturers to begin using the results of DOE's new procedures and provide those results on EnergyGuide labels several months before the DOE compliance date.

The Commission proposes to grant this exception, but only to the extent required to allow manufacturers27 to use the new test procedures on refrigerator (including refrigerators, refrigerator-freezers, and freezers) and clothes washer models manufactured after January 1, 2014 (for refrigerators) and June 1, 2014 (for clothes washers). If a manufacturer continues to use the current test results for a particular model until the new procedures take effect, September 15, 2014 (for refrigerators) and March 7, 2015 (for clothes washers), it must continue to use the current label for that model up until those dates. Manufacturers would remain obligated to comply with all other Rule requirements. The Commission proposes to grant this exemption on the following additional conditions:

(1) For models manufacturers choose to test and label under the exemption, manufacturers must follow the new DOE test procedures in 10 CFR Part 430, Subpart B, Appendix A (refrigerators) and Appendix J2 (clothes washers) to determine the energy use figures printed on EnergyGuide labels;28

(2) For all such models, manufacturers must use EnergyGuide labels, as illustrated in Figures 1 and 2 of this Notice, with the energy cost and electricity use figures in yellow text framed by block boxes and containing the statement “Compare to other labels with yellow numbers. Appliances that have labels with black numbers were tested differently to estimate cost and electricity used.”29

(3) For all such models, manufacturers must print the estimated energy cost on the label above the center of the comparability range, and the following statement must appear directly below the range: “Cost Range Not Available,” as illustrated in Figures 1 and 2 of this Notice;30

(4) For all such models, the label must state that the estimated energy cost is based on a national average electricity cost of 12 cents per kWh; and

(5) For all such clothes washer models, the label must state that the estimated energy cost is based on six wash loads per week and, as discussed below, must provide capacity in cubic feet.31

Second, to ensure consistency in labeling following the exemption period, the Commission proposes to amend the Rule at §§ 305.5(a) and 305.11 to require these new labels, as described in the five conditions above, after the test procedure transition. Thus, the new labels would apply to all refrigerators and clothes washers distributed on, or after, the DOE new test procedure compliance dates (September 15, 2014 for refrigerators and March 7, 2015 for clothes washers). This change should reduce consumer confusion in viewing labels that look alike but contain differently-calculated information.32 The Commission proposes to maintain this new label until DOE further amends the test procedures in the future beyond 2015. At that time, the Commission will consider changes to the label. In addition, once the Commission receives product data reflecting new and existing models tested under the new DOE procedures, it would issue new comparability ranges for those products.

The Commission seeks comment on the proposed exemption and associated amendments. In particular, the Commission requests input on whether the different results from the new and old DOE test procedures are significant enough to warrant the proposed label modifications. In addition, the Commission seeks comment on whether the proposed label changes are appropriate and will help consumers in their purchasing decisions. In particular, commenters should address whether the proposed labels will effectively communicate to consumers that they should not compare the old and new labels. In addition, commenters should identify any alternative disclosures or label designfeatures that would be more effective than the proposed labels.

In addition to the exemption request for a transitional label, the Commission has considered the following three issues related to refrigerators and clothes washers raised in response to the regulatory review notice: Changes to refrigerator range categories; disclosures for refrigerator models with optional icemakers; and capacity information for clothes washers.33

Refrigerator Comparability Range Categories:The current rule organizes refrigerator comparability ranges by product configuration (e.g.,models with top-mounted freezers) in Appendices A1-A8. The current requirements designate eight separate range categories for refrigerator models and three forfreezer models.34 These ranges disclose the energy costs associated with the most and least efficient models in a particular category. Specifically, for automatic-defrost refrigerator freezers, which typically populate the bulk of showroom floors, the Rule contains five categories (or styles): Side-by-side door models with and without through-the-door ice service; top-mounted freezer models with and without through-the-door ice service; and bottom-mounted freezer models. The Rule also has ranges for less common models including those with manual and partial defrost models, and refrigerator-only models.35 These categories allow consumers to compare the energy use of similarly configured refrigerators.

Several energy-efficiency and consumer groups urged the Commission to consolidate the comparability ranges into a single range covering all configurations.36 They reasoned one range would allow consumers to compare a product's energy performance against all other models. AHAM opposed this approach, arguing that consolidation of the ranges for different configurations would cast fully-featured products that use more energy in an unfavorable light. AHAM also pointed to data suggesting that consumers usually replace their existing refrigerators with similarly configured models. AHAM acknowledged, however, that it had no detailed information directly addressing whether consumers shop with a specific configuration in mind. It concluded that, without clear data on consumer shopping habits, the Commission should refrain from changing the current ranges.37

The Commission does not propose any changes at this time. Without further opportunity for comment on a proposal and more information about consumer buying habits, the Commission is reluctant to alter existing requirements.38 Once DOE's new standards become effective, the Commission will examine new range data from models on the market and consider whether to propose changes to the range categories.

Refrigerator Models with Optional Icemakers:Currently, refrigerator labels do not reflect icemaker energy consumption because the current DOE test procedure does not measure a model's icemaker operation. However, because the new DOE procedures will account for icemakers, the new labels will now include icemaker energy consumption for those products.39

In light of this change, AHAM has raised concerns about labeling for so-called “kitable” refrigerator models (i.e.,models that can be fitted with an icemaker before or after purchase).40 The new DOE rules divide these products into categories (i.e.,units with pre-installed icemakers and units without). Thus, each category will have its own EnergyGuide labels reflecting different levels of energy use. In comments to the Commission, AHAM has suggested that all “kitable” refrigerator labels disclose the energy use of the model shipped without the optional icemaker to avoid overstating energy costs for models that may never have an icemaker. In addition, AHAM suggests additional label language to inform retailers and consumers that the addition of an icemaker will increase the model's energy costs.

The Commission agrees that this proposal merits consideration. However, DOE plans to examine its designation of these models and thus may provide guidance that addresses AHAM's concerns.41 Accordingly, the Commission does not plan to impose any additional testing-related disclosures for these products until DOE has completed its deliberations.

Clothes Washer Capacity:In initiating the Rule's regulatory review, the Commission proposed to require specific capacity information in cubic feet on EnergyGuide labels for clothes washers.42 The Commission seeks additional comments on this issue. Current EnergyGuide labels indicate whether the model is “standard” or “compact,” but do not specify volume (e.g.,3.5 cubic feet). In the current market, most models fall into the broad “standard” size class (i.e.,models with tub capacities greater than 1.6 cubic feet), but actual capacity among models varies significantly. Thus, the general capacity disclosure provides little assistance to consumers in distinguishing washer size. A specific capacity disclosure on the label should help consumers make important product comparisons. It would also complement recent DOE and industry efforts to ensure uniformity in capacity disclosures, which would provide consumers with usable information whether they are looking at EnergyGuide labels, manufacturer advertising, or DOE certification data.43

AHAM objected to the Commission's proposal, arguing that it will greatly increase the number of labels manufacturers have to produce. According to AHAM, many washer models with different capacities have the same energy cost. Manufacturers currently print one label for such appliances. AHAM contended that the Commission's proposal would prevent this cost-savings. AHAM also argued consumers can access capacity information through other sources. In addition, it observed that industry members have already taken steps to ensure consistency in washer capacity claims. Thus, in AHAM's view, the Commission's proposal addresses a problem that no longer exists. In contrast, PG&E supported the specific capacity disclosure proposed in the regulatory review notice, suggesting it might “prompt consumers to think more critically about the utility of different sized washers, and also [their] associated energy and water requirements.”44

The Commission continues to believe that detailed capacity information will help consumers in their purchasing decisions. The presence of capacity information allows consumers easily to consider the size and energy cost of models as they compare products in showrooms and Web sites, without repeatedly crosschecking washer capacity disclosed elsewhere in specifications and other marketing material. In addition, this approach is consistent with the EnergyGuide labelsfor most other covered products, which, among other things, allow consumers to gauge a model's energy cost against its size. Moreover, data for clothes washers certified to DOE suggests that the proposed change would require new labels for a small fraction of models.45 Accordingly, it seems unlikely that the proposal would impose a substantial burden on manufacturers. The Commission seeks further comment on its proposal to require clothes washer capacity disclosures on the label.

The Commission invites interested persons to submit written comments on any issue of fact, law, or policy that may bear upon the FTC's proposed labeling requirements. Please provide explanations for your answers and supporting evidence where appropriate. In addition, the Commission notes that it has accepted several late comments in its ongoing regulatory review proceeding.46 To ensure that parties have an opportunity to address issues raised in those submissions, the Commission invites comments on any open issue in the regulatory review proceeding in addition to those issues raised in the present notice. Interested persons should follow the instructions below for filing any such comments on the regulatory review. After examining the comments, the Commission will determine whether to issue final amendments.

All comments should be filed as prescribed below, and must be received by March 1, 2013. Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Energy Label Ranges, Matter No. R611004” to facilitate the organization of comments. Please note that your comment, including your name and your state, will be placed on the public record of this proceeding, including on the publicly accessible FTC Web site, athttp://www.ftc.gov/os/publiccomments.shtm.

Because comments will be made public, they should not include any sensitive personal information, such as any individual's Social Security Number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential as provided in Section 6(f) of the Federal Trade Commission Act (FTC Act, 15 U.S.C. 46(f)), and FTC Rule 4.10(a)(2) (16 CFR 4.10(a)(2)). Comments containing matter for which confidential treatment is requested must be filed in paper form, must be clearly labeled Confidential, and must comply with FTC Rule 4.9(c). Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted using the following weblink:https://ftcpublic.commentworks.com/ftc/energylabelranges(and following the instructions on the web-based form). To ensure that the Commission considers an electronic comment, you must file it on the web-based form at the weblinkhttps://ftcpublic.commentworks.com/ftc/energylabelranges. If this Notice appears athttp://www.regulations.gov/#!home,you may also file an electronic comment through that Web site. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC Web site athttp://www.ftc.govto read the Notice and the news release describing it.

A comment filed in paper form should include the Energy Label Ranges, Matter No. R611004 reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex U), 600 Pennsylvania Avenue NW., Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC Web site, to the extent practicable, athttp://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC Web site. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy, athttp://www.ftc.gov/ftc/privacy.htm.

Because written comments appear adequate to present the views of all interested parties, the Commission has not scheduled an oral hearing regarding these proposed amendments. Interested parties may request an opportunity to present views orally. If such a request is made, the Commission will publish a document in theFederal Registerstating the time and place for such oral presentation(s) and describing the procedures that will be followed. Interested parties who wish to present oral views must submit a hearing request, on or before February 1, 2013, in the form of a written comment that describes the issues on which the party wishes to speak. If there is no oral hearing, the Commission will base its decision on the written rulemaking record.

The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act (PRA). OMB has approved the Rule's existing information collection requirements through Jan. 31, 2014 (OMB Control No. 3084 0069). The proposed amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule. As explained in detail elsewhere in this document, the proposed exemption and amendments do not significantly change the substance or frequency of the recordkeeping, disclosure, or reporting requirements. Thus, the amendments will not have a “significant economicimpact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, the Commission proposes to amend 16 CFR part 305 as follows:

The revisions read as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online athttp://www.regulations.gov,or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,type the docket number USCG-2012-0150 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,type the docket number USCG-2012-0150 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of 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.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one on or before February 8, 2013, using one of the methods specified underADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

Previously, temporary special local regulations regarding this maritime event have been published in the Code of Federal Regulations at 33 CFR 100.701. No final rule has been published in regards to this event. The proposed special local regulations are not new in their entirety, but merely reflect updates to certain details of the event.

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to insure safety of life on navigable waters of the United States during the Stuart Sailfish Regatta.

From Friday, April 19, 2013 through Sunday, April 21, 2013, Stuart Sailfish Regatta, Inc. will be hosting the Stuart Sailfish Regatta, a series of high-speed boat races. The races will be held on the Indian River located northeast of Ernest F. Lyons Bridge and south of Joes Cove, in Stuart, Florida. Approximately 150 high-speed power boats will be participating in the event. It is anticipated that at least 100 spectator vessels will be present during the race.

The proposed rule would establish special local regulations that will encompass certain waters of the Indian River located northeast of Ernest F. Lyons Bridge and south of Joes Cove, in Stuart, Florida. The special local regulations will be enforced daily from 9 a.m. until 5 p.m. from April 19, 2013 through April 21, 2013. The special local regulations consist of the following three areas: (1) A race area, where all persons and vessels, except those persons and vessels participating in the high-speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within; (2) a buffer zone around the race area, where all persons and vessels, except those persons and vessels enforcing the buffer zone, or authorized participants or vessels transiting to the race area, are prohibited from entering, transiting through, anchoring in, or remaining within; and (3) a spectator area.

Persons and vessels may request authorization by contacting the Captain of the Port Miami by telephone at (305) 535-4472, or a designated representative via VHF radio on channel 16, to enter, transit through, anchor in, or remain within the race area or the buffer zone. If authorization is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative. The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners and on-scene designated representatives.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The economic impact of this proposed rule is not significant for the following reasons: (1) The special local regulations will be enforced for a maximum of 8 hours a day for only three days; (2) non-participant persons and vessels may enter, transit through, anchor in, or remain within the regulated areas during their respective enforcement periods if authorized by the Captain of the Port Miami or a designated representative; (3) non-participant persons and vessels not able to enter, transit through, anchor in, or remain within the regulated areas without authorization from the Captain of the Port Miami or a designated representative may operate in the surrounding areas during the respective enforcement periods; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within any of the regulated areas during the respective enforcement period. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in theFOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed 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.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). Due to potential environmental issues, we conducted an environmental assessment last year for both the issuance of the marine event permit and the establishment of this special local regulation. The same environmental assessment is being used for this year's event as it is substantially similar in all aspects and therefore the potential effects and alternatives would remain unchanged. After completing the environmental assessment for the issuance of the marine event permit, and the establishment of these special local regulations, we have determined these actions will not significantly affect the human environment. The environmental assessment and finding of no significant impact (FONSI) are available in the docket where indicated underADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online athttp://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov, type the docket number [USCG-2012-1075] in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov, type the docket number (USCG-2012-1075) inthe “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of 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.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified underADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

This rule involves the USS CONSTELLATION “turn-around” cruise, an event that takes place in Baltimore, Maryland. A permanent safety zone for this proposed rule, with an enforcement period from 2 p.m. through 7 p.m. local time annually on the Friday following Labor Day, has been published and is detailed at Title 33 Code of Federal Regulations, Section 165.512. Due however to a change in scheduling, future such events are planned for the Thursday before Memorial Day (observed), and, if necessary due to inclement weather, on the Thursday following Memorial Day (observed). The event time and location remain unchanged.

Historic Ships in Baltimore is planning to conduct its turn-around ceremony involving the sloop-of-war USS CONSTELLATION in Baltimore, Maryland on the Thursday before Memorial Day (observed). Planned events include a three-hour, round-trip tow of the USS CONSTELLATION in the Port of Baltimore, consisting of an onboard salute with navy pattern cannon while the historic vessel is positioned off the Fort McHenry National Monument and Historic Site. Beginning at 3 p.m., the historic Sloop-of-War USS CONSTELLATION will be towed “dead ship,” which means that the vessel will be underway without the benefit of mechanical or sail propulsion. The return dead ship tow of the USS CONSTELLATION to its berth in the Inner Harbor is expected to occur immediately upon execution of a tug-assisted “turn-around” of the USS CONSTELLATION on the Patapsco River near Fort McHenry. The Coast Guard anticipates a large recreational boating fleet during this event, scheduled on a late Thursday afternoon before the Memorial Day Holiday weekend in Baltimore, Maryland. Operators should expect significant vessel congestion along the planned route. In the event of inclement weather, the “turn-around” will be rescheduled for the Thursday following Memorial Day (observed).

To address safety concerns during the event, the Captain of the Port Baltimore proposes to change to the enforcement period of a safety zone regulation for the annual movement of the historic sloop-of-war USS CONSTELLATION, conducted upon certain waters of the Patapsco River, Northwest Harbor and Inner Harbor. The proposed change to the enforcement period of the safety zone will help the Coast Guard provide a clear transit route for the participating vessels, and provide a safety buffer around the participating vessels while they are in transit. Due to the need to promote maritime safety and protect participants and the boating public in the Port of Baltimore immediately prior to, during, and after the scheduled event, the safety zone is prudent.

The Coast Guard proposes to change the enforcement period of the safety zone for a recurring event conducted in portions of the Patapsco River, Northwest Harbor and Inner Harbor. This regulation applies to the annual movement of the historic sloop-of-war USS CONSTELLATION detailed at Title 33 Code of Federal Regulations, Section 165.512.

Title 33 Code of Federal Regulations, Section 165.512, paragraph (e), establishes the enforcement date for the USS CONSTELLATION “turn-around” cruise event held in Baltimore, MD. This regulation does not change the enforcement times for the event. The safety zone will be enforced from 2 p.m. through 7 p.m. on the Thursday before Memorial Day (observed), and, if necessary due to inclement weather, from 2 p.m. through 7 p.m. on the Thursday following Memorial Day (observed), and will restrict general navigation in the regulated area during the event. Historic Ships in Baltimore, which is the sponsor for this event, holds this event annually. Except for participants and vessels authorized by the Coast Guard Captain of the Port Baltimore or the designated on-scene patrol personnel, no person or vessel will be allowed to enter or remain in the regulated area. This regulation is needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this safety zone restricts vessel traffic through the affected area, the effect of this regulation will not be significant due to the limited size and duration that the regulated area will be in effect. In addition, notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to operate or transit through or within the safety zone during the enforcement period. Before the effective period, maritime advisories will be widely available to the maritime community.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in theFOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFOR FURTHER INFORMATION CONTACTsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed 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.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing a temporary safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated underADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

i. Identify the document by docket ID number and other identifying information (subject heading,Federal Registerdate and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

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

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

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

3.Environmental justice.EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), (21 U.S.C. 346a), requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.

Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available online athttp://www.regulations.gov.As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

PP2F8056. Fine Agrochemicals Ltd. c/o SciReg, Inc., 12733 Director's Loop, Woodbridge, VA 22192, requests to amend an exemption from the requirement of a tolerance in 40 CFR 180.1299 for residues of the plant growth regulator prohydrojasmon (PDJ), propyl-3-oxo-2-pentylcyclo-pentylacetate, in or on red apples and grapes. The petitioner believes no analytical method is needed because this request is to establish a permanent exemption from the requirement of a tolerance and, therefore, an analytical method is not required.

This is a summary of the Commission's Further Notice of Proposed Rulemaking in PS Docket No. 11-153, PS Docket No. 10-255, FCC 12-149, released on December 13, 2012. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554, or online athttp://www.fcc.gov/document/text-911-further-notice-proposed-rulemaking.

1. Wireless consumers are increasingly using text messaging as a means of everyday communication on a variety of platforms. The legacy 911 system, however, does not support text messaging as a means of reaching emergency responders, leading to potential consumer confusion and even to possible danger. As consumer use of carrier-based and third party-provided texting applications expands and evolves, the 911 system must also evolve to enable wireless consumers to reach 911 in those emergency situations where a voice call is not feasible or appropriate.

2. In this Further Notice of Proposed Rulemaking, we propose rules that will enable Americans to send text messages to 911 (text-to-911) and that will educate and inform consumers regarding the future availability and appropriate use of text-to-911. Specifically, we propose to require all wireless carriers and providers of “interconnected” text messaging applications to support the ability of consumers to send text messages to 911 in all areas throughout the nation where 911 Public Safety Answering Points (PSAPs) are also prepared to receive the texts. In addition, to inform consumers and prevent confusion, we propose to require all wireless carriers and interconnected text messaging providers to send automated “bounce back” error messages to consumers attempting to text 911 when the service is not available.

3. Our proposals build on the recently filed voluntary commitment by the four largest wireless carriers—in an agreement with the National Emergency Number Association (NENA), and the Association of Public Safety Communications Officials (APCO) (Carrier-NENA-APCO Agreement)—to make text-to-911 available to their customers by May 15, 2014, and to provide automatic bounce back messages across their networks by June 30, 2013. The baseline requirements we propose in this Further Notice are modeled on the Carrier-NENA-APCO Agreement, and we seek comment on whether all carriers, including regional, small and rural carriers, and all “interconnected text” providers can achieve these milestones in the same or similar timeframes. To allow for the possibility of implementing our bounce back proposal by June 30, 2013, we are seeking comment on this portion of the Further Notice on an accelerated basis. Moreover, in light of the importance of these issues, we intend to resolve promptly the questions we raise in the remaining portion of the Further Notice in 2013.

4. Our proposal to add text capability to the 911 system will vastly enhance the system's accessibility for over 40 million Americans with hearing or speech disabilities. It will also provide a vital and lifesaving alternative to the public in situations where 911 voice service is unavailable or placing a voice call could endanger the caller. Indeed, as recent history has shown, text messaging is often the most reliable means of communications during disasters where voice calls cannot be completed due to capacity constraints. Finally, implementing text-to-911 represents a crucial next step in the ongoing transition of the legacy 911 system to a Next Generation 911 (NG911) system that will support not only text but will also enable consumers to send photos, videos, and data to PSAPs, enhancing the information available to first responders for assessing and responding to emergencies.

5. Our proposed approach to text-to-911 is also based on the presumption that consumers in emergency situations should be able to communicate using the text applications they are most familiar with from everyday use. Currently, the most commonly used texting technology is Short Message Service (SMS), which is available, familiar, and widely used by virtually all wireless consumers. In the Carrier-NENA-APCO Agreement, the four major carriers have indicated that they intend to use SMS-based text for their initial text-to-911 deployments, and we expect other initial deployments to be similarly SMS-based.

6. At the same time, we do not propose to limit our focus to SMS-based text. As a result of the rapid proliferation of smartphones and otheradvanced mobile devices, some consumers are beginning to move away from SMS to other IP-based text applications, including downloadable software applications provided by parties other than the underlying carrier. To the extent that consumers gravitate to such applications as their primary means of communicating by text, they may reasonably come to expect these applications to also support text-to-911, as consumer familiarity is vital in emergency situations where seconds matter. Therefore, in this Further Notice, we seek to ensure that consumers ultimately have access to the same text-to-911 capabilities on the full array of texting applications that they use for ubiquitous communication—regardless of provider or platform. We also propose that service providers who offer SMS-based text-to-911 should have the flexibility to migrate their customers to other text-to-911 applications.

7. While our proposal is designed to accelerate the nationwide availability of text-to-911, we recognize that deployment will not be uniform, e.g., during the transition period, text-to-911 may be available in certain geographic areas while it is not available in others, or may be supported by certain carriers but not by others. This creates the risk of consumer confusion about the availability of text-to-911 as the transition proceeds—indeed, there is evidence that many consumers erroneously believe that they can already reach 911 by text, and that some have attempted to do so. Rapid implementation of the bounce back notification mechanism that we propose in this Further Notice is therefore critical to informing consumers and lessening potential confusion about text-to-911 availability. In addition, we intend to begin work immediately with PSAPs, carriers, service providers, disability organizations, consumer groups, and others to educate and inform consumers regarding the transition, local availability, and appropriate use of text-to-911.

8. Finally, we emphasize that even as adding text capability makes the 911 system more accessible and effective in enhancing public safety, text-to-911 is and will remain a complement to, rather than a substitute for, voice 911 service. The voice 911 system that has been maintained and improved over decades remains the preferred means of seeking help in an emergency in most instances. Moreover, voice 911 service will continue to be central and essential to the 911 system even as we add text, photo, data, and video capabilities in the course of migrating to NG911. Therefore, even as we take this first major step in the transition to NG911, we continue to encourage all consumers seeking emergency help to access 911 by voice whenever possible.

9. In September 2011, the Commission released a Notice of Proposed Rulemaking (Notice) (76 FR 63257, October 12, 2011), which sought comment on a number of issues related to the deployment of NG911, including potential near-term methods for delivering text-to-911; whether and how to prioritize 911 in major emergencies; how to facilitate the long-term deployment of text-to-911; the Commission's role in deploying text-to-911 and other NG911 applications; consumer education and disclosure mechanisms; and the relationship between this proceeding and the implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA).

10. While some commenters initially expressed concerns about implementing near-term text-to-911, both wireless carriers and public safety entities have more recently taken significant steps towards the near-term deployment of text-to-911, including SMS-based solutions. In May 2012, Verizon Wireless announced plans to deploy text-to-911 capability throughout its nationwide network in 2013. On December 10, 2012, Verizon Wireless commenced its rollout of text-to-911 service in York County, Virginia. In June 2012, AT&T also announced the goal of launching text-to-911 nationwide in 2013. In addition, the Alliance for Telecommunications Industry Solutions (ATIS), an organization consisting of a large number of wireless and wireline carriers as well as equipment vendors, has formed a committee to “create an ATIS standard(s) for SMS-to-9-1-1 that incorporates requirements, architecture, message flows, and product details.” ATIS has targeted completion of these standards in the first quarter of 2013. Most recently, as noted above and described in further detail below, the four major wireless carriers, Sprint Nextel, AT&T, T-Mobile, and Verizon, have entered into a voluntary agreement with NENA and APCO whereby the major carriers will provide text-to-911 service by May 15, 2014, to PSAPs who request the service.

11. Some of these same wireless carriers have already initiated text-to-911 trials in partnership with several PSAPs to assess the technical feasibility of text-to-911 and its impact on PSAP operations. Four trials are currently under way—three of which have yielded positive results. First, as just announced, AT&T is “in the process of launching a standards-based trial service for text-to-911 in the state of Tennessee * * *.” Additionally, in June 2009, Black Hawk County, Iowa partnered with Intrado (a provider of 911 technology solutions) and i wireless (a T-Mobile affiliate that offers regional wireless communications service), to provide text-to-911 service within the county. According to Black Hawk County, there have been no delayed or dropped text messages in the trial, nor has there been a “significant increase in incident volume.” Indeed, callers have benefitted from the technology in several situations. This includes women who have been at risk of domestic abuse who have been able to text for help undetected by their assailant; children reporting instances of domestic abuse; and anonymous reports of imminent sales of controlled substances. Black Hawk County has expanded the trial and now receives text messages from individuals throughout the state, which it then relays to the appropriate PSAP. According to Black Hawk County, the trial demonstrates that text-to-911 service “is reliable and * * * saves lives.”

12. In August 2011, the City of Durham, North Carolina (Durham) initiated an SMS-to-911 trial in partnership with Verizon Wireless and Intrado. According to Durham, the technology has worked reliably. Durham's trial suggests that callers will continue to rely on voice calls to 911 and that concerns about text messages overwhelming PSAPs may be unfounded. Durham views the technology as a “valuable asset” and the North Carolina Director of the Division of Services for the Deaf and the Hard of Hearing stated that “the significance of the program cannot be overstated.” More recently, the trial was extended “to accommodate Durham's additional outreach to individuals with disabilities.”

13. In April 2012, the State of Vermont (Vermont) initiated a text-to-911 trial allowing any Verizon Wireless subscriber to send emergency text messages to the Williston, Vermont PSAP, provided that the text message is transmitted via a cell tower located within the physical boundaries of Vermont. The Executive Director of the Vermont E911 Board stated that implementing the trial “wasn't * * * difficult at all” and that so far, the trial has proceeded “very smoothly.” Vermont believes that fears over the volume of emergency text messages are“overblown” and “remain[s] convinced that those who can make a voice call will make a voice call as that is the most efficient way to communicate in an emergency.”

14. Vermont further reports that as of August 2012, it had received only two legitimate emergency text messages, but in both cases emergency services were able to intervene successfully. In one case, a life was saved when emergency personnel were able to thwart an attempted suicide. In the other case, a domestic abuse victim was able to contact police, who then arrived on the scene and made an arrest. While Vermont recognizes that some parties would prefer to wait for a more advanced text-to-911 solution, Vermont maintains that the “individual whose life we saved and the domestic assault victim would likely disagree that it is too soon to have this technology available.” Vermont also indicates it has experienced some text “spoofing,” but notes that “there is nothing about this new technology that is any more likely to result in `spoof' contacts than what we already deal with on the voice side of the system.” Additionally, Vermont did not experience any problems with text slang.

15. On October 30, 2012, Vermont submitted an ex parte filing indicating that it is maintaining the text-to-911 system past the end of its trial and is “currently working on enabling a second Public Safety Answering Point (PSAP) for redundancy purposes.” Vermont states that it “can report no negative operational impacts on our system as the result of the Verizon trial,” but that it needs the Commission's assistance in “encouraging all of the carriers to do the right thing and enable text-to-9-1-1 now.” Vermont concludes by stating that “[w]e understand that there are some concerns both in the PSAP and industry communities about the timing of SMS text-to-9-1-1, but so long as the most common method of texting on today's devices remains SMS, we feel it is important to move ahead and not wait for the promises that other texting solutions might provide.” On December 3, 2012, Vermont announced that it would further expand its text-to-911 trial to include Sprint Nextel customers, in collaboration with the Vermont Enhanced 911 Board, Sprint Wireless, and Intrado.

16. On December 6, 2012, APCO, NENA, Sprint Nextel, AT&T, T-Mobile, and Verizon, entered into a voluntary agreement whereby each of the four major carriers will provide text-to-911 service by May 15, 2014, to PSAPs who request such a service. Under the terms of the Carrier-NENA-APCO Agreement, once a signatory carrier begins to offer text-to-911 service, “valid PSAP requests for Text-to-911 service will be implemented within a reasonable amount of time of receiving such a request, not to exceed six months.” A request will be considered “valid” if the “requesting PSAP represents that it is technically ready to receive 911 text messages in the format requested,” and “the appropriate local or State 911 service governing authority has specifically authorized the PSAP to accept and, by extension, the signatory service provider to provide, text-to-911 service (and such authorization is not subject to dispute).” Additionally, no later than July 1, 2013, the four major providers will “voluntarily provide quarterly progress reports to the FCC, NENA, and APCO summarizing the status of the deployment of a national Text-to-911 service capability.”

17. Under the terms of the Carrier-NENA-APCO Agreement, the major carriers have also agreed to implement a bounce-back message capability by June 30, 2013. The bounce back message will “alert subscribers attempting to text an emergency message to instead dial 911 when text-to-911 is unavailable in that area.”

18. The signatories also agreed on additional measures to implement text-to-911 voluntarily. Specifically, the signatories agree that “PSAPs will select the format for how messages are to be delivered,” and that “incremental costs for delivery of text messages * * * will be the responsibility of the PSAP, as determined by individual analysis.” Additionally, the signatory service providers agree to implement a 911 short code and agreed to implement text-to-911 “independent of their ability to recover * * * associated costs from state or local governments.” The signatory providers also agree to “work with APCO, NENA, and the FCC to establish an outreach effort to set and manage consumer expectations regarding the availability/limitations of the Text-to-911 service (including when roaming) and the benefits of using voice calls to 911 whenever possible, and support APCO and NENA's effort to educate PSAPs on text-to-911 generally.”

19. Finally, the Carrier-NENA-APCO Agreement limits the proposed voluntary text-to-911 solution “to the capabilities of the existing SMS service offered by a participating wireless service provider on the home wireless network to which a wireless subscriber originates an SMS message.” Thus, the carriers state that under the terms of their voluntary commitment to deploy text-to-911 capability by May 15, 2014, “SMS-to-911 will not be available to wireless subscribers roaming outside of their home wireless network,” and “[e]ach implementation of SMS-to-911 will be unique to the capabilities of each signatory service provider or its Gateway Service Provider.”

20. In this Further Notice, we seek comment on issues related to text-to-911 in light of the evolved record, and bifurcate the comment cycles in order to deal most promptly with the consumer notification issue that has the potential to alleviate near-term consumer confusion as to the availability of text-to-911 both during the course of the voluntary roll outs that several carriers have proposed and during the pendency of the Commission's proceeding. Accordingly, comments with respect to Section III.A will be due 20 days from publication in theFederal Register, and reply comments on Section III.A will be due 10 days thereafter. Comments and reply comments should address only the issues posed in this section in order to provide the Commission with a focused record on this question. Comments and reply comment on the remaining portion of the Further Notice will be due 60 days and 90 days from publication in theFederal Register, respectively. We also seek comment on Section III.C (Legal Authority) as relevant to each section in accordance with the comment timeframe for that section.

21. Background. In the Notice, the Commission noted the likelihood that as text-to-911 is implemented, there will be instances where despite efforts to educate consumers, some individuals will attempt to send text messages to 911 in locations where text-to-911 is not supported. The Commission observed that this “could put consumers at risk if they were unaware that an emergency text did not go through or were uninformed about alternative means of reaching the PSAP.” To mitigate this risk, the Commission proposed that in situations where a consumer attempts to text 911 in a location where text-to-911 is not available, the consumer should receive an automatic error message or similar disclosure that includesinformation on how to contact the PSAP.

22. Public safety commenters generally support such an automatic notification requirement. APCO argues that “[i]n situations where a consumer attempts to text 9-1-1 in an area that does not support this technology, a standardized auto message should be immediately returned indicating how to contact the PSAP and/or that a voice call is required. The Commission is urged to work with APCO, NENA and NASNA to develop best practices and model responses.” The State of California similarly maintains that “the Commission [should] require any service provider that provides texting capability to its customers to provide an immediate, automatic response (preferably standard nationwide message) to any text-to-911 stating that texting to 9-1-1 is not available and advising the customer to make a voice call to 9-1-1 in an emergency.”

23. In their comments in response to the Notice, commercial mobile radio service (CMRS) providers acknowledge the importance of providing notification of non-delivery to consumers, although some commenters question whether the Commission should adopt a notification requirement. Verizon notes that it already provides an automated message when a wireless customer attempts to send a text message to 911 in a location where text-to-911 is not available. Verizon states that its voluntary practice obviates the need for regulation, but notes that “[s]hould the Commission nevertheless find a requirement is necessary, language like Verizon's would be sufficient and appropriate.” Sprint argues that before making any decision on this issue, the Commission should first refer the matter to standards organizations “to review the technical aspects associated with delivering an error message and to develop a consistent error response message.” Finally, textPlus, a software-based text application provider, notes that it already “sends a bounce back message to users alerting the user that the 911 address is not recognized.”

24. Most recently, however, the Carrier-NENA-APCO Agreement states that “[b]efore the deployment of Text-to-911, the signatory service providers will implement a bounce-back (auto-reply) message to alert subscribers attempting to text an emergency message to instead dial 9-1-1 when Text-to-9-1-1 is unavailable * * *” The Agreement further states that these providers, the four major wireless carriers which include Verizon and Sprint, “will implement the bounce-back * * * message by June 30, 2013.”

25. Discussion. We propose that CMRS providers and other providers of text messaging services should be required to automatically notify consumers attempting to text-to-911 in areas where text-to-911 is not supported or in other instances where the text cannot be transmitted to the PSAP. In this respect, there appears to be a clear benefit to persons in emergency situations being able to know immediately if a text message has been delivered to the proper authorities. This automatic feedback may be life-saving, allowing a person in need of assistance to immediately seek out an alternative. Providing this type of error message may also be particularly critical during the transition to NG911, as the record to date suggests there are likely to be numerous instances where consumers attempt to send text messages to PSAPs in areas where text-to-911 is not yet available.

26. We disagree with the assertion that there is no need for a bounce-back requirement because certain wireless carriers already voluntarily provide automatic error messages when customers attempt to text-to-911 in areas where it is not supported. Rather, we believe that all CMRS providers and other prospective text-to-911 service providers should implement this safeguard so that consumers have the assurance that they will receive automatic notification regardless of which provider they choose. While consumer education (as discussed below) may help to mitigate this risk, the possibility remains that without such a requirement, a consumer without knowledge of where text-to-911 is supported could attempt to send a text message to 911 and mistakenly believe that the text has been successfully transmitted to the PSAP.

27. Moreover, in view of the four carriers' commitment in the Carrier-NENA-APCO Agreement to implement a bounce-back message by the end of June 2013, a proactive approach for requiring automatic error messages appears to be feasible at a reasonable cost, especially in comparison to the public safety benefits that an automatic error message can provide consumers. The Carrier-NENA-APCO Agreement states that the four major wireless carriers “will meet [the] commitments [in the Agreement] independent of the [carriers] ability to recover these associated costs from state or local governments.” We believe that this representation indicates that the costs for implementing a bounce-back message are manageable, regardless of whether such costs are recoverable under current state or local cost recovery programs. However, we seek comment on this view, particularly in regard to the impact that the costs to meet the bounce-back requirement might have on small and rural CMRS providers compared to the public safety benefits for their subscribers.

28. We seek comment on the appropriate timeframe for CMRS providers to implement a bounce back messaging capability. Whether or not CMRS providers have developed text-to-911 capability, the record to date appears to demonstrate that it is technically feasible for them to provide an automated “bounce-back” text message in such circumstances instructing the sender to make a voice 911 call, and that many carriers already provide this message voluntarily. We recognize that CMRS providers other than the four major carriers may need to address certain technical and operational issues in order to meet our proposed notification requirement. Nevertheless, we believe that a solution should be implemented as quickly as possible to avoid the risk of consumer confusion. Accordingly, we seek comment on whether it is feasible for all CMRS providers to provide their customers with an automatic notification by the June 30, 2013 date specified in the Carrier-NENA-APCO Agreement. We seek comment on this timeframe, and any significant technical issues that would bear on the achievability of an automatic error message within that time frame by small, regional, or rural CMRS providers.

29. We also propose to require prospective providers of interconnected text service to develop an automated error message capability. In order to reduce potential consumer confusion and enhance the ability of consumers to communicate by text in emergencies using the applications they are most familiar with from everyday use, we believe that the “bounce-back” requirement proposed for CMRS providers above should also apply, to the extent feasible, to all providers of software applications that enable a consumer to send text messages to text-capable U.S. mobile telephone numbers and receive text messages from the same when a user of the application attempts to send an emergency text in an area where text-to-911 is not supported or the provider is otherwise unable to transmit the text to the PSAP.

30. We clarify that we do not propose to extend text-to-911 obligations to IP-based messaging applications that support communication with a defined set of users of compatible applications but do not support general communication with text-capabletelephone numbers. We believe it is less likely that consumers will expect such applications to support emergency communications. Nevertheless, we encourage providers of such messaging applications to inform their users that these applications do not support communication to 911. We seek comment on this approach. Are there other “flavors” of third-party text messaging applications that should not be included? Why?

31. We seek comment on the feasibility and cost of third-party providers to implement such an automatic notification and whether they must address any unique technical issues not faced by CMRS providers in executing this requirement. We also seek comment on whether it is feasible timeframe for third-party providers to implement the automatic notification requirement by June 30, 2013, or whether we should adopt a longer timetable.

32. We clarify that with respect to both CMRS providers and interconnected text providers, our proposed requirement for automatic notification to consumers would only apply to situations where the provider (or the provider's text-to-911 vendor) has direct control over the transmission of the text message and is unable to transmit the text message to the PSAP serving the texting party's location, whether due to network congestion, the inability of the PSAP to accept such messages, or otherwise. Thus, for example, a CMRS provider would not be required to provide automatic notification where the consumer uses a text application provided by a third party that the carrier does not control. Similarly, notification would not be required where the provider is able to transmit the text to the PSAP, but a failure in the PSAP network results in the text not being delivered to a 911 operator. We seek comment on our proposal. We also clarify that we do not propose to require all text-to-911 providers to use the exact same wording for their automatic error messages to consumers. Rather, we propose that providers would be deemed to have met our requirement so long as the error message includes information on how to contact the PSAP. For example, an automated message that advises the consumer to place a voice call to 911 would meet the proposed requirement. We would, however, encourage carriers to work with public safety organizations and consumer organizations, including disability organizations, on a common error message text to simplify consumer education. We seek comment on this approach.

33. Background. The Notice sought comment on how to ensure that consumers are informed about the availability and non-availability of text-to-911 in specific areas. Specifically, the Notice sought comment on the expected costs and benefits of various approaches to consumer education and disclosure mechanisms, whether contractual or cost considerations would deter consumers from texting or sending photos or video to 911, and if so, whether providers or the Commission should develop practices to remedy that situation. It also sought comment on what types of educational programs could be created to reduce and/or prevent consumer confusion as text-to-911 is deployed in the short term, what the appropriate role is for the Commission and for other government and private sector entities in any public education effort, and whether other resources could be developed to help individuals learn about where text-to-911 services are and are not available.

34. Public safety commenters generally agree that there is a significant need for a nationwide effort to educate the public and prevent consumer confusion while text-to-911 is being rolled out. For example, the North Central Texas Council of Governments (NCTCOG) conducted a recent survey which noted that approximately one-third of their population believe they can text 9-1-1 today. APCO argues that “NG9-1-1 and the capabilities for data and multimedia will require a focused and funded public education plan. Consumers must be made aware of the limitations of 9-1-1 location accuracy and they must be cognizant of the role that they need to play in `managing their emergency.' ” APCO urges the public and private sector to “unite to provide a national campaign targeted at public education of NG 9-1-1 as it becomes available,” and offers to help “craft and disseminate an agreed upon curriculum.” NASNA supports focusing educational efforts on “discrete groups that would receive substantial and meaningful benefits” from near-term deployment of text-to-911, “such as the deaf and hard of hearing.” NASNA suggests these focused educational efforts “could provide a model when texting-to-9-1-1 is deployed on a permanent basis.” NENA “encourages the Commission” to implement a campaign to “provid[e] states, regions, and localities with template materials such as canned video, audio, and print materials” that “could provide enormous economies of scale * * * and help local 9-1-1 systems and centers to effectively educate the public about the roll-out of new system capabilities.” NENA also contends that “it is imperative that any text-to-9-1-1 solution that relies on a digit string or short code incorporate the digits `9-1-1' ” because “[d]oing so will help to minimize consumer confusion and reduce public education costs.”

35. Industry commenters also stress the importance of consumer education and the need for both public and private sector participation in education efforts. CTIA stresses that “consumer education requires that federal and state entities, as well as Public Safety agencies and consumer representatives, participate in the consumer education process, and that the responsibility not be left solely to the wireless industry.” CTIA also supports the concept presented in the Notice of developing a consumer-focused map or Web site that would provide information on the text-capability of specific PSAPs, but notes that “the cost of developing and updating such resources is an issue that should be considered in developing a map or similar consumer education campaign.”

36. Discussion. We agree with commenters that educating the public is critical to the successful roll-out of text-to-911 and preventing consumer confusion. Adding text capability to the 911 system is not likely to occur uniformly: during the transition period, the availability of text-to-911 will vary by area, and the areas of availability will change over time as the transition progresses. The Carrier-NENA-APCO Agreement recognized this and the signatory providers agreed to “work with APCO, NENA, and the FCC to develop an outreach effort to set and manage consumer expectations regarding the availability/limitations of the Text-to-911 service (including when roaming) and the benefits of using voice calls to 911 whenever possible, and support APCO and NENA's effort to educate PSAPs on Text-to-911 generally.” Therefore, as we initiate the transition, a concerted effort will be needed to provide the public with accurate and up-to-date information regarding where text-to-911 is—and is not—available.

37. Aside from educating the public about the availability or unavailability of text-to-911, education is also imperative to inform the public about the capabilities and limitations of text-to-911 where it is available, and the circumstances under which texting 911 is or is not preferable to making a 911 voice call. The public needs to be aware that text may not provide all of thefeatures and functionalities associated with voice 911 service, such as automatic location. Similarly, the public needs to be aware that, while sending an emergency text may be preferred in instances where the sender is unable to communicate by voice (e.g., due to a speech or hearing disability, or in a hostage or abuse situation where voice calling could be dangerous to the caller), in most other instances, placing a voice call to 911 will continue to be the most effective means of communicating with emergency responders, and therefore will remain the strongly preferable option even where text is available.

38. Given the clear need for consumer education, we direct the Public Safety and Homeland Security Bureau and the Consumer and Governmental Affairs Bureau to implement a comprehensive consumer education program concerning text-to-911, and to coordinate their efforts with state and local 911 authorities, other federal and state agencies, public safety organizations, industry, disability organizations, and consumer groups, consistent with those voluntary measures taken under the Carrier-NENA-APCO Agreement. To assist in the development of this program, we seek comment on what educational tools and resources exist or need to be developed to combat consumer confusion as text-to-911 is deployed. To what degree can current 911 educational programs be adapted to help consumers understand the availability, capability, and appropriate use of text-to-911? How do we ensure that education and outreach efforts on text-to-911 are fully accessible to people with disabilities? Are there lessons that we can draw from educational efforts that were conducted during the deployment of basic 911 or E911 service? Have other countries developed text-to-911 education programs?

39. We also seek comment on whether CMRS and interconnected text providers should provide educational information to their subscribers about the availability and use of text-to-911. The signatory providers in the Carrier-NENA-APCO Agreement agreed to work with APCO, NENA and the Commission to develop an outreach effort to “set and manage consumer expectations” regarding text-to-911. Should carriers also provide information regarding the text-to-911 capabilities of specific wireless devices that operate on their networks?

40. Would it be feasible to provide consumers with the ability to test text-to-911 functionality in their devices? Allowing customers to send simulated or test 911 messages could have benefits by enabling customers to verify the availability of text-to-911 and familiarize themselves with its use. However, any test mechanism would need to be configured to avoid burdening PSAPs with unnecessary text messages, e.g., by having the carrier or 911 text services provider reply to test messages with an automated response. We seek comment on technical and cost issues associated with developing such a test capability.

41. Who should bear the primary responsibility for educating consumers on the limits of text-to-911? The Commission? CMRS and interconnected text providers? Public safety organizations? Should the Commission establish a joint effort in conjunction with CMRS and interconnected text providers and public safety to implement an education effort? To what extent should consumer groups, including organizations representing the interests of people with disabilities, be included in such efforts? Should the educational effort be federal, regional, state, or local-level? What safeguards and measures should be taken to ensure that education and outreach efforts on text-to-911 and its limitations are fully accessible to people with disabilities? Can the ability to send test text messages to a PSAP facilitate consumer education? Could the database described in Bandwidth.com's comments be used to automatically generate up-to-date consumer-facing maps of where text-to-911 is available?

42. The Commission has previously highlighted the popularity and ubiquity of text messaging, the increasing public expectation that consumers should be able to text to 911 during an emergency, and the importance of text to 911 for people with disabilities. American consumers send billions of SMS text messages per day and more than two-thirds of mobile phone users have used text messaging. Moreover, many of these consumers are acquiring advanced mobile devices (e.g., 3G and 4G devices) that enable them to send text messages using “over-the-top” software applications that they install on their phones and other mobile devices. Additionally, text messaging will likely play an integral role in providing future 911 services for persons with communications disabilities. Hence, any discussion about the near-term deployment of text-to-911 must consider both SMS and currently available, as well as anticipated, software applications as potential platforms.

43. The record in response to the Notice indicates that NG911 will eventually be capable of supporting the full range of possible multimedia-to-911 communications, including transmission of text, photos, video, and data. However, due to the complexity and cost of deploying NG911 infrastructure on a national scale, full deployment of NG911 will not be uniform and will likely take years. At the same time, the record indicates that it is technically feasible for CMRS providers to implement text-to-911 using existing technologies prior to full deployment of NG911, as evidenced by the successful trials and demonstrations noted above, the University of Colorado and Intrado technical studies, and the fact that the four largest nationwide wireless carriers committed to deploy text-to-911 capability throughout their networks by May 15, 2014. Thus, text-to-911 could be made available to virtually all wireless customers in the near term and delivered to both “NG-capable” and “pre-NG” PSAPs at a reasonable cost to wireless carriers.

44. As discussed below, we believe that enabling consumers to send a text message to 911 in the near term will substantially improve accessibility to emergency services, particularly for people with hearing and speech disabilities. While we recognize that text-to-911 based on pre-NG technologies does not provide the full functionality of NG911-based text, and that it has certain limitations in comparison to voice-based 911, we believe that these limitations are outweighed by the substantial public safety benefits that near-term implementation of text-to-911 would yield. In addition, implementing text-to-911 in the near term will provide valuable real-world operational experience that will help consumers, PSAPs and service providers plan for full NG911 deployment. Moreover, the availability of text-to-911 will provide incentives for PSAPs to acquire Internet Protocol (IP) connectivity and NG911-capable customer premise equipment (CPE), which are both critical steps towards the full deployment of NG-911. We seek comment on these observations.

45. We also believe that adopting a mandatory regulatory framework and timetable for implementation of text-to-911 is necessary. We recognize that substantial progress has been achieved through the voluntary initiatives of the four major CMRS providers, 911 service providers, and PSAPs described above. However, we are concerned that continuing to rely solely on voluntary measures could result in the four majorCMRS providers implementing text-to-911 while other service providers—including regional, small, and rural CMRS providers and third party interconnected text providers—do not, or could lead to non-uniform and uncoordinated implementation, inconsistent technological approaches, and widely varying implementation timelines to the detriment of consumers. This in turn could lead to a longer transition period, increased transition costs, and increased consumer confusion regarding when and where text-to-911 will be supported, what functionality it will provide, and when and how consumers should use it where it is available. We seek comment on this analysis.

46. Public safety commenters made a number of ex parte submissions in the record highlighting the importance of deploying text-to-911 services. NENA conducted a comprehensive study and reported that the majority of its chapters would support a requirement for wireless carriers to provide text-to-911 services to their customers. APCO argued that “deferring action on the basic [text-to-911] requirement would only lead to uncertainty and delay serious consideration of implementation issues and requirements.” NCTCOG submitted an ex parte noting that the public expects to be able text-to-911 and highlighted that “a recent market study * * * showed that approximately1/3of our population believe they can text 9-1-1 today.” The Maine Public Utilities Commission noted that “increasingly [persons with disabilities are] abandoning the use of TTYs for new technologies such as text messaging that allow them more flexibility to communicate with most others except 9-1-1.”

47. We believe that a mandatory regulatory framework that builds on existing voluntary initiatives will mitigate these risks by providing a common deadline for the implementation of text-to-911. Moreover, while under our proposal PSAPs will still have the option to choose whether to accept text messages, greater uniformity in availability will enhance PSAP options and make it easier to justify investments in upgrades. Uniformity will also promote coordinated and consistent deployment by establishing a set of baseline requirements for all CMRS providers and third-party interconnected text providers to meet. Finally, it will provide greater certainty to consumers regarding text-to-911 availability, functions, and usage. Given the these substantial benefits, we believe that the public interest is served by requiring CMRS providers and third-party interconnected text providers to supply text-to-911 capabilities to their customers on all text-capable devices. We seek comment on this analysis and on possible timelines and technical options for implementation of these proposed requirements.

48. The record indicates that text-to-911 can offer significant public safety benefits, most notably: (1) Widespread consumer availability and ease of use, (2) enhanced accessibility to 911 for people with hearing and speech disabilities, and (3) an alternative means of emergency communication for the general public when 911 voice service is unavailable or when voice calling could endanger the caller. We note that text-to-911 service may also permit “text-takers” to open multiple texts and prioritize the most life-threatening situations first, rather than waiting to address calls based simply on the order in which they arrived.

49. The effectiveness of the legacy voice 911 system derives in large part from its ease of use by consumers, and their familiarity and comfort with voice calling on everyday devices. It is much easier for people faced with the stress of emergency situations to communicate quickly and effectively when they are able to use the same technologies that they use for everyday communications. This principle, which has long applied to voice calling, is increasingly true for communication by text as well. More than 2 trillion text messages are sent annually and according to the Pew Center, more than 7 out of 10 cell phone users send or receive text messages. Another report suggests that 91 percent of smartphone owners actively use SMS. Thus, expanding existing text technology to support 911 will provide the public with a familiar mode of communication for emergency use.

50. Currently, approximately 15 percent of the United States population, or 34.5 million people, have hearing disabilities and approximately 7.5 million people have difficulty using their voices. Moreover, there is a strong relationship between age and reported hearing loss. For example, 18 percent of American adults 45-64 years old have a hearing loss, 30 percent of adults 65-74 years old have a hearing loss, and 47 percent of adults 75 years old or older have a hearing loss. By 2030, 20 percent of the population will be over 65 years old, substantially increasing the number of Americans who may need alternatives to voice communications when accessing 911. Further, an increasing number of soldiers are returning from overseas and are experiencing traumatic brain injury, which can result in hearing or speech disabilities.

51. Title II of the Americans with Disabilities Act (ADA), enacted in 1990 requires PSAPs to provide persons with hearing or speech disabilities with direct access to 911 emergency services. Since 1991, the U.S. Department of Justice (DOJ) has implemented this provision by requiring all public safety agencies to make their telephone emergency services directly accessible to TTYs. In the Notice, however, the Commission explained that people with hearing and speech disabilities have increasingly migrated away from specialized legacy devices, such as TTYs, and towards more widely available forms of text communications because of the ease of access, availability, and practicability of modern text-capable communications devices. While the migration to widely available texting technologies has had the unique benefit of bringing prior TTY users into the mainstream of our nation's communications systems, this transition has also led some commenters to suggest that it leaves people with hearing and speech disabilities without an effective, reliable and direct means of accessing 911 services in the event of an emergency.

52. The EAAC noted that individuals who cannot hear or speak well enough to communicate with 911 currently have no direct means of accessing 911 when mobile other than TTYs. However, with the vast majority of people with hearing and speech disabilities having discarded their TTYs, these devices are no longer considered a viable means of directly accessing 911 for this population. Nevertheless, the EAAC found that many individuals who are deaf have service plans that include SMS. One “key finding” of the EAAC is that “individuals with disabilities should be able to call 9-1-1 using the same means they use for everyday telecommunication.”

53. At present, individuals with disabilities who have stopped using TTYs often have no other option but to rely on telecommunications relay services (TRS) to access 911 emergency services. Text-based relay services generally require an emergency call to first go to a communications assistant (CA), who places the call to the PSAP. The CA then relays the conversation back and forth between the caller andthe PSAP, by voicing all text that is typed by the person with a disability to the PSAP call taker and typing back responses to the caller. As such, many have criticized TRS as providing only an indirect means of conveying information that may result in delays and translation errors during an emergency. For example, Consumer Groups note that IP-Relay, one text form of TRS, has not been widely embraced by the deaf and hard of hearing community for requesting emergency services because of the relatively long length of time it takes to reach a relay operator and then get to the correct PSAP, the fact that the call will generally arrive on a non-emergency line, and the possibility of mistakes by the CA in the relaying of the call.

54. The record in this proceeding and the EAAC Report make clear that a significant number of people with hearing and speech disabilities will benefit from the ability to directly send a text message to 911 from any device that is text-capable. Advocates for and individuals who are deaf and hard of hearing strongly support implementation of a near-term text-to-911 solution and disfavor text relay approaches due to the risk of delay and translation errors. Moreover, enabling direct text messaging to 911 by people with hearing and speech disabilities will allow this population to use mass market communication devices that have increasingly evolving capabilities. While disability advocates have previously been skeptical of SMS-to-911 because it does not support real-time text, they have given more recent support to SMS as a viable near-term solution because of its familiarity and ease of use for people with disabilities. Respondents to the EAAC survey expressed a clear preference for calling a PSAP using the same technology that they use on a daily basis. Moreover, 87.7 percent of respondents reported having used SMS text messaging and 46.1 percent reported having used SMS text messaging “almost every day.”

55. Consumer Groups similarly urge the Commission to require the deployment of SMS-to-911 technologies in the near term as a rapid and practical means of significantly enhancing accessibility to the 911 system for people who are deaf and hard of hearing. Consumer Groups point out that because consumers have already embraced SMS technology, and the vast majority of wireless providers and manufacturers support SMS, this capability may be deployed rather quickly. Likewise, the Wireless Rehabilitation Engineering Research Center (RERC) “strongly supports” the incorporation of SMS for the initial deployment of an NG 911 system. Similarly, the RERC on Telecommunications Access notes that it is imperative for the Commission to ensure that mobile text communication is available in the near term to people who are deaf.

56. The ability to send text messages to 911 will also provide an important alternative means of emergency communication to the benefit of the general public. While the general public will not need to use text-to-911 services as frequently as people with hearing and speech disabilities, experience has shown that there are situations where being able to send a text message to 911 as opposed to placing a voice call could be vital to the caller's safety. For example, in the 2007 shooting incident at Virginia Tech, a number of students attempted unsuccessfully to send SMS text messages to 911 so as not to be heard and located by the shooter. Similarly, in the Black Hawk County, Iowa text-to-911 trial, text has been used in domestic and child abuse situations in which the victim feared that the suspect would overhear the call to 911. Additionally, the Vermont trial further demonstrated text-to-911's efficacy in cases involving suicide and domestic violence.

57. Text-to-911 can also provide a lifeline when voice networks are impaired or congested. In large-scale disasters, for example, circuit-switched landline and mobile networks may become overloaded, making it difficult to place a 911 voice call. Conversely, SMS and IP-based text messages to 911 can still be transmitted because text consumes far less bandwidth than voice and may use different spectrum resources and traffic channels. As TCS notes, “[i]n situations in which a high 9-1-1 call volume results in blocked calls to the PSAP or situations in which the wireless infrastructure capacity is impacted such that placing voice calls is difficult or impossible, SMS communications to a PSAP may provide the only reasonable communications method to emergency services.” TCS further notes that according to data it had drawn from its CMRS provider customers, attempts to text-to-911 are made regularly and the number of attempts to text-to-911 during the recent Hurricane Sandy spiked sharply. TCS also highlights that unlike phone calls that are be handled on a “first-in, first-addressed” basis without any ability to know which queued up calls are priorities, a single “text-taker” could open more than one text and “attempt to address the more urgent and life-threatening emergencies with greater priority.” In addition, the University of Colorado finds that “text users and call takers compose and read messages offline and only use communication for the moment that the message needs to be sent [which] saves valuable network resources during network congestion.” Thus, people in disaster areas may still be able to send text messages to 911 even if they cannot place a voice call.

58. Balanced against the above-described benefits of text-to-911, we believe that the record indicates that text-to-911 is technically feasible and can be achieved in the near term at a reasonable cost to PSAPs, CMRS providers, and providers of interconnected text. We disagree with commenters who argue that the Commission should not act until NG911 is fully deployed. As we note above, it will likely take a number of years to deploy NG911 on a national scale. The record also indicates that it is technically feasible for CMRS providers to implement a text-to-911 solution using existing technologies prior to the full deployment of NG911, and we believe the same should be true for interconnected text providers. Thus, text-to-911 could be made available to virtually all wireless customers in the near-term and delivered to both “NG-capable” and “pre-NG” PSAPs at a reasonable cost to wireless carriers. In this respect, we also believe that investments made now by PSAPs and carriers to support text-to-911 can be leveraged to support NG911 deployments, and accordingly constitute building blocks towards an IP-based emergency network. For example, while some PSAPs may choose to implement text-to-911 through existing equipment, such as TTY terminals, other PSAPs may choose to upgrade their equipment to receive text messages in a manner that will also support additional data in an NG911 environment.

59. We disagree with MetroPCS's argument that any text-to-911 obligations should “only be imposed on the largest nationwide carriers because the costs of increased regulations are more easily borne by the largest carriers.” There is no evidence that the cost of implementing a text-to-911 solution will be substantial enough to warrant limiting the obligation to the largest carriers. In fact, the first text-to-911 trial in the nation was conducted in Black Hawk County, Iowa by a smallwireless carrier. Further, we believe that exempting certain wireless carriers from a text-to-911 obligation solely on the basis of size would create additional consumer confusion, because consumers would still be unsure of whether their wireless carrier provides text-to-911 service or not. We seek comment on these views.

60. Based on these findings and consistent with the Carrier-NENA-APCO Agreement, we propose that all CMRS providers and interconnected text providers should be required to implement the capability to support text-to-911 in their networks. Because SMS is the most common texting technology in use today, and virtually all wireless consumers already have access to it and are familiar with its use, we expect that most CMRS providers will initially support SMS-based text-to-911. At the same time, we recognize that CMRS providers may eventually seek to migrate customers away from SMS to other text applications, such as IP-based real-time text or Rich Communication Services (RCS). Therefore, we do not propose to require CMRS providers to support SMS-based text-to-911 so long as they provide their customers with at least one pre-installed text-to-911 option per device model that works across the provider's entire network coverage area. We propose to allow CMRS providers to select any reliable method or methods (e.g., mobile-switched, IP-based) for text routing and delivery. We seek comment on this proposal.

61. As noted above, public safety commenters generally support the implementation of text-to-911 in the near term as a first step in the transition to NG911. NENA notes that SMS is “the prevailing consumer text mode in the United States,” and that in addition to being the most widely available platform, SMS “is also the most interoperable, working between nearly every device on every network in the United States.” NENA also notes that Verizon's text-to-911 announcement indicates that “SMS-to-911 capabilities can be technically feasible.” NATOA, NACo, and NLC state that they support the use of SMS as “an interim solution for text-based communication to 911,” since it is “particularly beneficial to people with disabilities, including people who are deaf, hard of hearing, or have speech impediments.”

62. Black Hawk County highlights that it has not encountered any text-related problems during its trial and notes that “SMS text-to-911 is reliable and available, as clearly demonstrated in our project.” BRETSA and the Colorado 9-1-1 Task Force state that “the key advantage of text messaging to 9-1-1 will be in facilitating communications with the PSAP by speech and/or hearing impaired individuals. Text messaging is generally preferred by the speech and hearing impaired community over TTY communications because it is more portable, ubiquitous, and convenient.” Vermont argues that fears over the volume of emergency text messages are “overblown” and “remain[s] convinced that those who can make a voice call will make a voice call as that is the most efficient way to communicate in an emergency.”

63. While public safety entities generally regard near-term text-to-911 as feasible, some express concern about the potential cost of implementation and the impact on PSAP resources if text-to-911 results in a heavy influx of text messages. The State of California states that “[s]hort-term implementation of text-to-911 will likely increase the time and resources required for PSAPs to process information as compared to handling voice calls.” APCO states that “[w]hile SMS may be appropriate as a near-term solution for limited circumstances, it is not a long-term solution for the general public.” NASNA opposes encouraging wide-spread deployment of short-term SMS-based solutions “[u]ntil such time as text-delivery standards are developed, adopted and compliance is assured.” Finally, BRETSA and the Colorado 911 Task Force argue that “devoting funds to an interim solution for text messaging may mean that less funds will be available in the future for a more effective solution, once NG9-1-1 has been deployed and PSAP systems updated to take advantage of NG9-1-1.”

64. Based on the record in this proceeding, the Carrier-NENA-APCO Agreement, and the success of the various technology trials noted above, we believe that the implementation of text-to-911 will not impose an undue burden on PSAP operations. First, under our proposed framework, PSAPs will retain the discretion to decide whether to accept text messages. Thus, if a PSAP chooses not to accept text messages, there would be no requirement for it to do so and therefore no cost to the PSAP. We believe that PSAPs are able to best understand their local technological and financial situation, and determine whether it is technically and financially feasible or desirable to implement text-to-911 in their service area. While we share BRETSA and the Colorado 911 Task Force's funding concerns, we believe that PSAPs will be in the best position to understand their ongoing NG911 funding needs. Additionally, as much of the architecture for text-to-911 service can be leveraged for NG911, we do not expect that funding text-to-911 will divert resources from funding future NG911 services. Second, as discussed in greater below, for PSAPs that elect to accept text messages, we propose several options for the receipt of text messages, including options that will impose minimal costs on the PSAP. Third, while we recognize that the technology trials noted above are limited in scope, the trial results suggest that PSAPs are not likely to become overwhelmed with text messages.

65. In response to the Notice, CMRS commenters initially opposed a near-term text-to-911 mandate and argued that the Commission should instead focus its efforts on long-term NG911 solutions. These commenters cited a variety of concerns with implementing text-to-911 prior to the full development of next-generation solutions, including technical limitations, limited monetary resources, reliability and security, issues with consumer education, and liability protection. Notwithstanding some of these concerns, however, the four major wireless carriers voluntarily committed to deploy text-to-911 capability throughout their nationwide networks by May 15, 2014.

66. Further, the record indicates that the cost for CMRS providers to implement a text-to-911 solution will be minimal. Indeed, according to cost estimates that were submitted into the record by Intrado and Bandwidth.com, the total cost for all CMRS providers to implement this solution will be approximately $4 million annually. Based on our review of the record, the Carrier-NENA-APCO Agreement, the cost estimates provided by vendors, and the success of the text-to-911 trials and demonstrations, we believe that it is feasible for all CMRS providers to cost-effectively implement a text-to-911 solution in the near term. We seek comment on this view. We also seek comment below on the appropriate timetable for implementing our proposal in order to address the concerns raised by CMRS commenters. We also seek comment on the cost for interconnected text providers to implement a text-to-911 solution. More specifically, what are the likely initial and ongoing costs for interconnected text providers? For routing purposes, can interconnected text providers use the same service providers as CMRS providers? If so, would the cost be similar? Would a per-incident service model be feasible forsmaller interconnected text providers? Are there any other potential costs that the Commission should consider? To that end, we seek quantitative information for our cost-benefit analysis.

67. States and localities collect approximately $2 billion in 911 fees and taxes annually for the operation and support of the legacy voice-based 911 system. Most states have reported to the Commission that “they used the fees or surcharges that they collected for 911/E911 service solely to fund the provision of 911/E911 service.” Dependent on the regulatory mechanism set forth in each statute, states distribute funding either to the carriers directly, or to a designated state or local entity which then reimburses carriers. As we have noted previously, the highest vendor estimate submitted in this record regarding the cost to carriers to implement nationwide text-to-911 capability is $4 million annually, a mere fraction of the cost of the current voice 911 system.

68. Balanced against this low cost, the implementation of text-to-911 will provide substantial benefits both for people with disabilities and the general public in a variety of scenarios. While not all of the benefits associated with these scenarios are quantifiable, we have conducted a cost-benefit analysis of the potential impact of text-to-911 in the area of cardiac emergencies—a category that represents less than 10 percent of 911 calls but for which detailed statistical information is available. Even when we limit our analysis of benefits to this subset of total emergencies, we find that the potential benefits of text-to-911 for just this one category of 911 calls outweighs the costs of implementing text-to-911 for all carriers and PSAPs. We seek comment on our case study analysis below.

69. Our analysis is based on a 2002 study of cardiac emergencies in Pennsylvania that found adoption of E911 to be associated with improvements in the health status of patients, particularly those with cardiac conditions. That Cardiac Study shows that, when precise location information is provided contemporaneously with a 911 call, response time is notably shortened and correlated with an over 34 percent reduction in mortality rates from cardiac arrest within the first 48 hours following the incident.

70. The life-saving benefits demonstrated in the Cardiac Study provide a useful reference point for assessing the importance of timely and effective 911 communication to response time and positive outcomes for medical emergencies. We therefore have extrapolated from the Cardiac Study to determine the likely number of cases in which text-to-911 might extend similar benefits to people with hearing and speech disabilities who cannot use voice to contact 911, but who would be able to communicate location information if text were available.

71. Based on the Cardiac Study, we calculate that for the voice-based 911 system as a whole, improved response time resulting from delivery of precise location information saves approximately 4,142 lives annually nationwide. To determine the proportionate benefit for people with disabilities that would result from availability of text-to-911, we consider only the 0.7 percent of the population with the most severe hearing and speech impairments (0.5 percent for extreme hearing difficulty and 0.2 percent for extreme speech difficulty). Assuming a proportional number of 911 calls in cardiac emergencies from this population, and limiting our calculation to intentional wireless calls in which the hearing- or speech-disabled person cannot rely on a speaking person to make the 911 call, we calculate that text-to-911 would save approximately 7 lives annually in cardiac emergencies. Using an accepted statistical value-of-life model developed by the U.S. Department of Transportation, we estimate the value of each life saved to be $6.2 million. This yields a total benefit of $43.4 million annually for cardiac victims alone, or more than ten times the highest estimated cost of the rules proposed herein.

72. We emphasize that the benefits calculated above for cardiac emergencies represent only a subset of the benefits that will be generated by text-to-911. The record reflects numerous other benefits that are less quantifiable but that may be similarly or even more substantial. Black Hawk County and Vermont have cited concrete examples where text-to-911 enabled callers to reach 911, but could not make a voice call for safety reasons. Similarly, the record includes additional compelling evidence that text-to-9-1-1 may provide significant benefits in disaster scenarios due to the relatively high reliability of SMS messages and the relatively low amount of network capacity required to deliver an SMS message. These benefits, though not specifically quantifiable, provide compelling evidence that the aggregate benefits of text-to-911 will significantly exceed the specific benefits quantified here—and will be generated at no additional cost.

73. In response to the Notice, several commenters raise concerns about the reliability of text-to-911, and particularly SMS-based text. 4G Americas notes that “it found no short-term solution that did not exhibit limitations with respect to capability, performance, and impacts to users, network operators and/or PSAPs.” CTIA states that “SMS was not designed to be used as an emergency service” and urges the Commission to focus on the deployment of “advanced 9-1-1 emergency communications services in emerging wireless technologies.” Other commenters similarly assert that certain technical aspects of SMS limit its reliability for emergency communications. Among the factors cited are that SMS (1) is one-way rather than session-based; (2) lacks delivery or performance guarantees, and may not inform the sender when a text is not timely delivered; (3) does not prioritize emergency messages; (4) does not assure that multiple messages will arrive in the sequence they were sent; (5) does not support 911 location technologies that are used for 911 voice calls; and (6) lacks protections against transmission of spurious or fraudulent 911 messages.

74. Technical Studies. In response to the Notice, two commenters conducted technical studies which present evidence that SMS-to-911 is as reliable as voice, and in some instances, may be even more reliable than voice. In the first study, researchers at the University of Colorado tracked several hundred SMS text messages and found that “the reliability of text messages and mobile phone voice calls, in terms of data loss, are very similar.” The University of Colorado study “found that all of the text messages sent were received by the cellular network, resulting in a `data loss rate' of 0% and a reliability level of 100%.” In addition, the University of Colorado study noted that “[o]ther researchers have tested the reliability of * * * SMS * * * and found that the `data loss rate' over several thousand messages was less than 1%, resulting in a reliability level of 99%. The statistical implication is that large samples might experience a small percentage of data loss, but overall the reliability for text messages is similar to that of voice calls.” 4G Americas criticizes the University of Colorado's findings and notes that the “study was executed in an academic environment with a pre-determined technology and setting. The study did not involve a large number of subscribers, and hence, no real-world traffic conditions.”

75. The University of Colorado study also found that text messaging is actually more reliable than voice communications when a weak signal exists, “such as when the caller is in the mountains, in the midst of high rise buildings, inside a building, under a collapsed building following an earthquake or explosion, or in a trunk of a car [or] closet.” The University of Colorado notes that “[c]ommunication at the edge of coverage can be sporadic, allowing only momentary windows of communications coverage that are not long enough to support a voice call but a short burst of a text message can get through. In addition, some implementations of SMS automatically keep trying to send a text message until a transmission window opens.”

76. Intrado conducted the second technical study, in which it sent “tens of thousands of actual SMS messages [from] a simulated PSAP to a mobile device and from a mobile device to the simulated PSAP.” The study found that “by using techniques such as the 9-1-1 SMSC [short message service center], SMS can be used to create a very reliable and timely 9-1-1 communication infrastructure.” According to Intrado, “90% [of the text messages] were delivered within 3-4 seconds.”

77. Discussion. While 4G Americas, CTIA, Motorola, and several other commenters provide anecdotes about the limited reliability of SMS-to-911, the University of Colorado and Intrado conducted the only two technical studies on this issue. Notably, both of these studies found that the reliability of SMS-to-911 is comparable to voice, and in some instances, even more reliable than voice. Further, we believe that the success of the existing trials, the Carrier-NENA-APCO Agreement, and the continued rollout of text-to-911 services throughout the nation demonstrate that industry has already overcome many of the reliability deficiencies that were originally cited in the comments. While SMS was certainly not designed for emergency communications, we disagree with T-Mobile's claim that “SMS is fundamentally unsuited for emergency communications.” Indeed, a life was saved in Vermont as a direct result of Verizon's SMS-to-911 trial. Additionally, we note that, for callers who are deaf or hard-of-hearing, reaching 911 by voice may not be possible at all, so that even a mechanism that is not perfectly reliable can provide significant benefit. For callers who are not deaf, text-to-911 provides an additional way to reach PSAPs, thus increasing the overall probability of obtaining help. Finally, we believe that our proposal for wireless carriers to provide a “bounce-back” capability will further mitigate reliability concerns. Accordingly, given the significant benefits of text-to-911 service, we do not believe that reliability concerns should delay the deployment of text-to-911. We seek comment on this analysis.

78. As technology and consumer habits evolve, consumer expectations also change and the need to meet those expectations in times of emergency must also evolve. As more consumers use SMS-substitutes, whether provided by the underlying carrier or by a third party, it is important that we evaluate ways to alleviate consumer confusion and promote regulatory parity. We note, however, that despite this proliferation of SMS-substitutes, the Carrier-NENA-APCO Agreement is limited to SMS services provided by the signatory providers.

79. Accordingly, as discussed below, we are seeking comment on a variety of issues associated with non-SMS messaging applications, including “over-the-top” texting applications provided by third-parties. In this regard, our focus is on those applications that are most like SMS and therefore most likely to be the subject of a consumer expectation that they may reach 911, namely those two-way texting applications that allow text messages to be sent to any U.S. phone number, irrespective of the hardware utilized to send that message.

80. Background. In the Notice, the Commission sought comment on non-SMS text-to-911 alternatives, including IP-based messaging, real-time text, and downloadable software applications. While noting the potential advantages of SMS as an interim solution, the Commission also sought comment on how to encourage the development of non-SMS options that could provide more flexibility and functionality to consumers.

81. Commenters generally support allowing carriers and service providers to develop alternatives to SMS-based text. NENA notes that smartphone-based text-to-911 applications could lower costs for both consumers and PSAPs and that “because 9-1-1 text applications would run on smartphones or advanced devices, their call streams could, in some instances, operate outside the normal 911 voice call path.” The University of Colorado observes that “there are an increasing number of smartphone applications and other SMS short cuts that provide for pre-stored and automatically composed messages, such as contact information for an epileptic having a seizure, or to include location [GPS] coordinates.” Bandwidth.com notes that applications can be “specifically geared toward enhancing the ability of the deaf and hard of hearing to access public safety via texting.” LR Kimball states that “[s]oftware applications that can integrate into the legacy 911 system should be the first choice in the short term to allow for more complete access. * * * [and] should be developed in a way that makes use of services currently in use at PSAPs.” AT&T urges the Commission to avoid imposing text-to-911 regime that would force carriers to continue supporting SMS-based text-to-911 after SMS has become technologically obsolete or economically uncompetitive.

82. In the Notice, the Commission also observed that consumers are acquiring more advanced mobile devices (e.g., 3G and 4G handsets) that enable them to install “over-the-top” software applications. In the Notice, we sought comment on whether text-to-911 requirements should apply to both CMRS and non-CMRS providers alike. The Commission sought comment on the feasibility of using general texting or 911-specific software applications to send text messages to PSAPs. The Commission noted that both providers and third parties, including vendors that provide services and equipment to PSAPs, could develop such applications.

83. In response to the Notice, CTIA and AT&T noted the proliferation of “over-the-top” software applications and highlighted the need for the Commission to implement technology neutral regulations that apply equally to both carrier-provided and non-carrier-provided texting solutions. CTIA stated that “it is * * * unclear how a national SMS-based interim solution would work in the context of over-the-top applications or other non-carrier-provided SMS solutions” and emphasizes that “the [FCC] must * * * consider the severed link between the licensed CMRS service provider and the emergency calling capabilities, such as location accuracy, of end-user devices and over-the-top applications.” AT&T notes that: (1) “limiting the mandate of [t]ext-to-911 services to SMS services provided by telecommunications carriers would be short-sighted, and thus a great disservice to the general public[;]” (2) a “mandate that is exclusive to the SMS platform fails to account for the fact that such services are experiencing both declining revenues and usage due to theproliferation of free [`over-the-top'] texting applications[;]” and (3) “[t]he FCC must adopt a technologically-neutral solution that applies equally to carrier-provided SMS services and competitive alternatives to avoid distorting the marketplace to the detriment of one service provider.” AT&T further explains that “failing to include [`over-the-top'] substitutes in the mandate may cause significant customer confusion regarding the accessibility of emergency services via text message” and that “applying this mandate on a technology neutral basis ensures that the effectiveness of the mandate does not depend on the dominance of any platform or on the market position of any group of service providers.” Additionally, AT&T notes that “including [`over-the-top'] providers in the scope of a text-to-911 mandate would assist ongoing industry standards work by encouraging [those] providers to participate in * * * developing a text-to-911 solution.”

84. On the other hand, several entities express concerns about the Commission extending text-to-911 obligations to “over-the-top” software applications. Sprint notes that “[m]any * * * over-the-top messaging providers are relatively small and likely may not have the financial resources to achieve PSAP integration.” Sprint also asserts that “it would not be able to control * * * third-party commercial offerings nor influence how wireless consumers utilize such applications.” Further, Sprint highlights the limitations associated with “over-the-top” software solutions, including the ability to “obtain location information associated with a particular call.” Similarly, U.S. Cellular states that it prefers text-to-911 to “be considered in the context of native SMS,” and that it does not favor covering over-the-top text applications. U.S. Cellular also notes that “on some devices, SMS messages up-convert to MMS, and delivery of those converted messages to PSAP[s] would need to be further explored.” Motorola Mobility maintains that “any regulatory responsibility for over-the-top text-to-911 applications, including collection of precise location information, must rest only on the application developer.”

85. The VON Coalition argues that “there is no public policy justification for extending SMS-to-911 obligations to over-the-top IP text applications” and maintains that “[t]here is no evidence that customers using over-the-top applications expect that they can use these applications to contact emergency services.” The VON Coalition contends that “[i]t seems highly unlikely that a wireless user with both an SMS functionality and an over-the-top messaging application would in some instances choose to open an application, sign in and then send an `SMS' to a PSAP rather than simply using the wireless phone's SMS capability that (a) the customer likely uses on a near-daily basis, and (b) is readily available to the user without opening any application or providing sign-in information.” The VON Coalition highlights that “over-the-top messaging applications, which are dependent on the availability of broadband Internet access, are less reliable than a wireless carrier's SMS text services that require no broadband availability and, moreover, very little bandwidth vis-à-vis voice or other data communications on a wireless carrier's network.” The VON Coalition also notes that “there currently are no location solutions for over-the-top applications—neither for routing a message to the appropriate PSAP nor to provide sufficient location information associated with the caller.” The VON Coalition adds that “[b]ecause an over-the-top message is provided over another provider's network—whether a wireless carrier, wireline carrier or a Wi-Fi hotspot—there is no real-time location information associated with the over-the-top message.” Accordingly, the VON Coalition “recommend[s] that over-the-top IP-based messaging and text services that rely on the mobile operator's data network should be excluded from an interim [text-to-911 requirement] as they are precisely the type of communications capability for which NG911 is intended.”

86. More recently, the VON Coalition reiterates these points and further argues that the lack of user location information is an impediment to enabling routing of an emergency text to the appropriate PSAP. Moreover, they argue that implementing an interim solution directed at text-to-911 may impact the transition to NG911, or may stifle innovation and alter business models. Should the Commission pursue a 911 obligation for IP-based SMS providers, the VON Coalition urges that any obligation be limited to “two-way” over-the-top SMS, so that a texting customer is able to receive a bounce-back message where a PSAP is unable to receive text-to-911 messages.

87. Similarly, Apple urges the Commission, in addition to considering the jurisdictional and technical issues associated with implementing a text-to-911 obligation for over-the-top text messaging application providers, to limit its proposals to those applications that (1) are installed on a device that determines the user's location using a technology that meets the enhanced 911 requirements set forth in Section 20.18(h) of the Commission's rules; and (2) independently enables the user to send text-based messages to and receive text-based messages from any valid North American Numbering Plan telephone number via the short message service protocol.

88. Discussion. As smartphone technology and applications proliferate, wireless consumers increasingly have the ability to send and receive text messages using downloadable software applications. These applications may be provided to the consumer by the underlying wireless service provider or by third party software providers, and may use one of a variety of text delivery methods. For example, some text applications deliver text to mobile telephone numbers over the carrier's existing mobile-switched SMS network, while other applications deliver text over IP data networks, and some applications support both delivery methods and can also deliver MMS content. Several over-the-top applications hold themselves out as competitive alternatives to CMRS-provided SMS services. In addition, some software providers have developed 911-specific software applications for smartphone users that are designed specifically to support communication by text and other media with PSAPs that install and operate the application. As the Wall Street Journal recently noted, the volume of SMS text messages per month sent by consumers has recently dropped 3 percent, with the most likely explanation of this “major shift in mobile communications” attributable to migration of these messages to over-the-top messaging platforms. Another study suggests that over 45 percent of smartphone owners use an SMS alternative such as over-the-top messaging apps in addition to or in lieu of traditional SMS. And while other analysts predict that SMS will continue to grow globally through 2016, they further predict a large scale drop-off in SMS in favor of over-the-top applications thereafter.

89. This trend towards development and use of new third-party text applications has significant implications for the implementation of text-to-911. While SMS is currently the most widely available and heavily used texting method in the U.S., and is likely to remain so for some time, consumer access to and use of third-party text applications is likely to increase over time. As this occurs, some consumers may choose to use such applications as their primary means of communicating by text, relying less on SMS or possibly bypassing SMS entirely. In thateventuality, consumers that become familiar with software applications by using them for everyday non-emergency communications will be increasingly likely to prefer them for emergency communications. Moreover, consumers faced with the pressure of an emergency may attempt to use the most familiar application available to contact 911 even if they are not certain that it will work.

90. Given this emerging trend for technology and consumer behavior patterns, we believe it is important to consider whether certain third party-provided text applications and carrier-provided applications should be subject to text-to-911 obligations, particularly those that hold themselves out as substitutes for carrier-provided SMS services. In choosing to use a particular text application from a variety of available options, consumers may not even be aware of the identity of the party providing the application or the nature of network technology that the application uses to deliver the text. Thus, imposing text-to-911 requirements based on the identity of the provider or the delivery technology could lead to some applications supporting text-to-911 while other applications that are functionally similar from the consumer perspective do not support text-to-911. In this respect, it may be important to consider consumer expectations both now and in the future as a matter of public safety, as well as to consider means to promote competitive neutrality to ensure that like services are treated comparably, thereby avoiding arbitrage created by artificial regulatory distinctions.

91. As discussed above, consumers now have access to a wide variety of tools that allow the sending of text messages on almost any computing and communication device. However, as the VON Coalition notes, consumers may not have the expectation to send text messages to 911 from all possible text applications, and some of these may face significant technical difficulties in delivering text messages to the correct PSAP, possibly depending on the platform the application is running on. Thus, we divide text applications into two broad categories, namely (1) interconnected text applications that use IP-based protocols to deliver text messages to a service provider, which the service provider then delivers the text messages to destinations identified by a telephone number, using either IP-based or SMS protocols, and (2) non-interconnected applications that only support communication with a defined set of users of compatible applications but do not support general communication with text-capable telephone numbers. We seek comment on applying text-to-911 obligations on the former category, but not the latter.

92. In this respect, we seek comment on the characteristics of interconnected text applications to which text-to-911 obligation should apply, if adopted. As described above, Apple suggests a two-prong approach to determine whether an interconnected text application would fall within the Commission's proposed text-to-911 obligations. The VON Coalition similarly suggests that over-the-top applications should be “two way” in order for a text-to-911 obligation to attach. Are either of these definitions appropriate? Are they too limited? Do these characteristics conform to consumer expectations? For example, if a text messaging application only provides for “outbound-only” messaging to a U.S. telephone number, would a consumer still expect to be able to reach 911? Are there other characteristics that we should take into account?

93. We also propose to treat providers of such non-SMS text applications similarly to CMRS providers with respect to the obligation to provide text-to-911 capability to their users within a defined timeframe. By enabling text communication with any text-capable mobile number, these “interconnected text” applications provide effectively the same functionality that SMS provides currently. Therefore, we believe the same text-to-911 obligations should apply on a technology-neutral and provider-neutral basis. We seek comment on this proposal generally and on the issues discussed below.

94. We also seek comment on whether third-party interconnected text software providers face technical issues or obstacles in the implementation of text-to-911 that could affect the extent to which a text-to-911 requirement may be implemented, or the timeframe for such implementation. Commenters agree that flexibility in implementation is important to reduce the burden of deploying text-to-911. This is likely to be particularly important for interconnected text applications, since they are often designed by smaller enterprises. Do third-party software providers face difficulties assuring that their application works reliably on all hardware platforms, operating systems, and operation system versions supported by the application? Do these applications have access, possibly after asking for user permission, to cell tower and/or geo location information via platform application programming interfaces? Can applications warn users that disabling location functionality for an application may interfere with the ability to send text-to-911 messages? Could operating system providers facilitate the access to location information for emergency calling and texting purposes? If the text application cannot obtain location information, under what circumstances can the application deliver the text message to a gateway and have the gateway service determine the approximate location of the message sender? Can texting applications determine the cellular telephone number of handsets to help locate the mobile device?

95. To facilitate discussion, we posit three possible implementation choices and invite comment on their respective advantages and disadvantages, as well as descriptions of additional options. The descriptions are meant to be illustrative, and are not meant to limit how implementers achieve the goal of providing text-to-911 to users of their applications.

96. The first implementation option leverages the SMS application programming interface (API) offered by common smartphone operating systems. The interconnected text application would use the API to deliver any text message addressed to 911, while using the application-specific mechanism for all other, non-emergency messages. It appears that many applications already separate messages by destination, as they often only deliver messages using Internet protocols for certain countries or regions.

97. In the second option, text-to-911 messages are handled the same as any other text message and delivered to the SMS gateway provider chosen by the application vendor. The gateway provider then delivers those messages to text-capable destinations. This gateway provider handles text messages addressed to 911 and delivers them to the location-appropriate PSAP, possibly with the assistance of a third party 911 message routing service.

98. Finally, in the third option, text-to-911 messages are delivered via Internet application layer protocols to PSAPs, without being converted to SMS along the way, using NG911 protocol mechanisms. The messages can be delivered to PSAPs either by the provider of the text messaging application or a third-party service provider.

99. Are there alternative mechanisms that might be used? Which of these methods provides advantages or disadvantages for the application developer? For the PSAP? For the consumer? Which options are more likely to transition seamlessly to NG911, or provide a foundation that can beleveraged by one or more of the parties in the NG911 delivery chain? How do these options differ in terms of implementation complexity, reliance on technologies not readily available, cost to the text messaging provider or reliability?

100. Commenters have previously expressed concerns about the lack of access by the third party provider to consumer location information associated with a text-to-911 message, impacting both the ability to deliver the text message to the appropriate PSAP and the ability to locate the consumer seeking assistance. Which of the options described above facilitate delivery of location information? Are there other technical mechanisms or commercial arrangements that would facilitate the ability of a third party text application to ascertain the location from which the text originated? Can a requirement to provide text-to-911 precede such an ability? Can privacy controls utilized by some applications to limit access to location information interfere with the ability to identify the origination of a text-to-911 message? Are there other privacy concerns that need to be considered, or is it reasonable to assume that a person sending a text to 911 implicitly waives such privacy concerns? Can third party text messaging applications bypass any privacy safeguards when 911 is the destination short code?

101. We seek comment on whether all CMRS providers and interconnected text providers should be required to implement the capability to support text-to-911 throughout their networks by May 15, 2014. In light of the public safety benefits of making text-to-911 available to consumers regardless of carrier or service provider, and the benefits to both PSAPs and consumers from coordinated implementation, we believe it may be desirable for all CMRS providers, including small and rural carriers, and all interconnected text providers to implement text-to-911 capability in their networks on a timetable comparable to the four largest wireless carriers. Setting a single, uniform deadline for all providers would arguably facilitate coordination among text-to-911 providers, vendors, and PSAPs, reduce the likelihood of non-uniform deployment, and provide consumers with a clear expectation of when text-to-911 will be supported regardless of which carrier or service provider they use.

102. We seek comment on this approach. Would a uniform timetable help minimize consumer confusion? Is such a uniform timeframe feasible, or are there factors that could prevent small, rural, and regional CMRS providers and third-party interconnected text providers from implementing text-to-911 in the same timeframe as the four major CMRS providers? For example, some parties have posited that the relatively small size and lack of resources for certain applications developers would limit their ability to comply with a text-to-911 requirement. Is this accurate? Are there other factors we should consider?

103. The Carrier-NENA-APCO Agreement also states that once a “valid” PSAP request is made for delivery of text messages, “service will be implemented within a reasonable amount of time of receiving such request, not to exceed six months.” Further, a request for service will be “considered valid if, at the time the request is made: (a) the requesting PSAP represents that it is technically ready to receive 9-1-1 text messages in the format requested; and (b) the appropriate local or State 9-1-1 service governing authority has specifically authorized the PSAP to accept and, by extension, the signatory service provider to provide, text-to-911 service (and such authorization is not subject to dispute).” Are these reasonable conditions? Is six months an appropriate timeframe? What steps does a CMRS or interconnected text provider have to take to add a PSAP to its list of text recipients and how much time are such steps likely to take? Should the same timeframe apply for both CMRS providers and interconnected text providers? Should this timeframe become shorter over time as the process for responding to PSAP requests becomes more established and routine?

104. Background. Short codes for mobile-switched text messaging are administered by the Common Short Code Administration (CSCA) and are typically five-digit or six-digit numbers. In the Notice, the Commission sought comment on whether a national short code for text-to-911 should be designated by the Commission, a standards-setting body, or some other entity. The Commission also asked how the short code should be designated or implemented.

105. Commenters in general agree that the Commission should establish and reserve the digits `9-1-1' as a national short code for text-to-911. Most notably, under the Carrier-NENA-APCO Agreement, the four largest wireless carriers committed to “implement a `9-1-1' short code that can be used by customers to send text messages to 9-1-1.” APCO notes that “text-to-9-1-1 should involve the digits `9-1-1' and not a different short code” and that “[a]ny short code other than 9-1-1 will eventually need to be phased out as regions are able to accept text solutions direct to the PSAPs via NG911.” NENA urges that “any short code implemented must be uniform across carriers and geographic or political boundaries.” King County states that “a national short code, ideally using the digits 9-1-1, should be designated by Congress or the [FCC], similar to the designation of 911 as the national emergency number by Congress.” AT&T argues that the Commission should “establish and reserve a standardized SMS short code” and that it “makes sense to use some variation of the present abbreviated dialing pattern 9-1-1 for this purpose.” Intrado believes that “an appropriate text solution should use the digits 911.” Motorola, however, cautions that there may be technical issues associated with using 911 as an SMS short code in some devices, and that “end users experiences in trying to use 911 as an SMS short code may be seriously lacking.” Nevertheless, Motorola notes that it “has released well in excess of 100 mobile devices and software combinations in the U.S. market within the past three years, none of which has been tested for support of 911 as a SMS short code.”

106. Discussion. The evolution of 911 as the national emergency telephone number has resulted in the digits “9-1-1” being widely and uniformly associated with emergency communication in the United States. American consumers are familiar with dialing 911 to place an emergency voice call, and children are routinely taught to dial 911 as the way to summon help from police, fire, and ambulance service. This widespread use and consumer recognition of 911 makes it logical and highly desirable to implement 911 as a standard three-digit short code for sending emergency text messages to PSAPs wherever and whenever feasible.

107. Moreover, the general technical feasibility of using 911 as a text short code appears to be established. In each of the text-to-911 trials that have occurred to date, subscribers of the participating CMRS providers have been able to use 911 as the short code for text messages to participating PSAPs. Moreover, under the Carrier-NENA-APCO Agreement, the four largest wireless carriers committed to “implement a `9-1-1' short code thatcan be used by customers to send text messages to 9-1-1.”

108. Given the apparent technical feasibility of a 911 short code and the widespread consumer recognition of 911 as the standard emergency number in the U.S., we do not believe that other CMRS providers should encounter any substantial issues with using a 911 short code. We therefore propose that whenever technically feasible, all CMRS providers should configure their networks and text-capable cell phones to support 911 as the three-digit short code for emergency text messages sent to PSAPs. We seek comment on this proposal. We also seek comment on whether there are any text-capable cell phones being sold in the United States that are incapable of using the digits 911 as a short code. If so, what are those devices and how many of them are in use? To what extent, if any, could such devices be modified or updated by a consumer or wireless retail store to support a three-digit code? In the event that certain devices cannot be so modified or updated, should we designate an alternate short code (e.g., a five-digit code) that such devices could use?

109. With respect to interconnected text applications, we recognize that “short codes” per se may not be appropriate conceptually for non-SMS texting. We therefore seek comment about whether there are any technical obstacles or other issues associated with such applications using the three-digit identifier 911. How can these issues, if any, be addressed? Are they specific to particular applications, or to IP-text messaging generally? Should interconnected text applications provide an icon indicating the ability to reach text-to-911?

110. The Commission first adopted a requirement for wireless carriers to be capable of transmitting TTY calls to 911 services in July 1996. Although the initial deadline set for implementation of this requirement was October 1, 1997, efforts to find a technical solution to support TTY (Baudot) technology over digital wireless systems ended up taking years of research and testing. As a result, the Commission granted multiple extensions of time for entities to comply with this mandate, ultimately requiring compliance by June 30, 2002. At that time, per the 1996 Order, wireless service providers were required to upgrade their digital networks to be compatible with TTYs and handset manufacturers were required to provide a means by which users could select a TTY mode on their phone's menus. However, by the time these changes were implemented, new digital technologies, more mobile and less expensive, had caused most TTY users to migrate away from use of these devices as their primary communication mode.

111. It is for this reason that the CVAA included a provision for the EAAC to consider deadlines “for the possible phase out of the use of current-generation TTY technology to the extent that this technology is replaced with more effective and efficient technologies and methods to enable access to emergency services by individuals with disabilities.” ATIS points to this provision in recommending that the Commission waive the TTY compatibility requirement for new wireless handsets where such handsets support the ATIS INES Incubator recommended solution. Specifically, ATIS argues that “[w]hile PSAPs and wireless networks should support TTY services for the foreseeable future, the TTY requirement for wireless handsets may be a redundant communication modality for future wireless handsets that support the recommended ATIS INES Incubator solution.

112. As we noted earlier, the EAAC survey confirmed the declining use of TTYs by people with disabilities as well as the need for new forms of accessible communications to reach 911 services—including text and video—by persons who have hearing or speech disabilities. The decline in TTY usage is also reflected in the steep reduction in the number of minutes of TTY-based TRS over the last several years. At the same time, an estimated 100,000 users make approximately 20,000 emergency calls annually using TTY. In other words, while it is true that TTY use is declining, TTY still provides an invaluable, real-time 911 service for its users. Additionally, no similar robust products exist for mobile and IP-networks, where the expected lifetime of a product is about two years as opposed to TTY's ten year expected lifetime. Finally, users of TTY may not wish to switch to a new communication mechanism with which they are not familiar.

113. Therefore, we seek further comment on whether the Commission should sunset the TTY requirement for new handsets, and if so, what criteria should be adopted before such action is taken. If the Commission does sunset the TTY requirement for new wireless handsets, should it do so only contingent upon a wireless texting capability? The EAAC recommended that the Commission lift the TTY requirement only for those handsets that have “at a minimum real time text or, in an LTE environment, IMS Multimedia Telephony that includes real-time text.” In addition, the EAAC's 2012 Subcommittee on TTY Transition concluded that “[c]onsistent implementation of a well-defined `TTY replacement' with higher functionality real-time text, simultaneous voice and better mobility can fill an important need in accessible communication for user to user calls, relayed calls and 9-1-1 calls.” We seek comment on these EAAC recommendations concerning the removal of the TTY requirement. Should the ubiquitous use of SMS, alone or with other forms of text capability, be a factor in determining whether to lift the TTY requirement? Or, does the real-time nature of TTY communication make it fundamentally different from SMS, such that SMS is not a valid replacement for TTY-capable handsets?

114. In the Notice, the Commission sought comment on how to ensure that text messages to 911 include accurate location information for routing to the appropriate PSAP and for determination of the sender's location by the PSAP. The record developed in response to the Notice indicates that it is technically feasible to route text messages originated on CMRS mobile switched networks to the appropriate PSAP based on the cell sector from which the text originated. Therefore, we propose to require CMRS providers (and their associated text-to-911 vendors) to use cell sector location to route 911 text messages originated on their networks to the appropriate PSAP. We also seek comment on any technical or informational challenges for third party interconnected text providers with respect to determining caller location and providing the appropriate routing. We do not propose at this time to require provision of E911 Phase II location information in conjunction with 911 text messages, although we encourage its provision where technically feasible. We discuss these proposals in greater detail below.

115. Background. While the Carrier-NENA-APCO Agreement does not speak specifically to routing issues, the signatory providers agreed to provide text-to-911 on an interim “best-efforts” service subject to a valid PSAP request. However, the provision of text-to-911 under the Carrier-NENA-APCO Agreement is limited to “the capabilitiesof the existing SMS service offered by a participating wireless service provider on the home wireless network to which a wireless subscriber originates an SMS message.” Many commenters, including public safety entities, argue that any text-to-911 solution must be capable of routing text messages to the appropriate PSAP based on the sender's location. APCO states that “any solution must provide PSAP call routing capability that is as good as or better than what is being deployed today.” BRETSA and the Colorado 9-1-1 Task Force agree that “[t]he location of the caller must be available for the purposes of routing the call to the correct PSAP.”

116. Focusing on SMS-to-911, some CMRS commenters contend that there are technical difficulties in routing SMS messages to the correct PSAP. The Blooston Rural Carriers claim that “current SMS standards do not support automated routing to the PSAP or automated location information.” Sprint Nextel states that “location information is not included with SMS text messages and would not be available for PSAP routing.” 4G Americas argues that “SMS * * * provides no location information—not even a cell tower—so the originating network may not accurately route the message to the correct PSAP. Because the lack of location and session information, false messages can be easily spoofed * * * without the PSAP detecting the spoof.”

117. However, commenting vendors counter that even if SMS was not initially designed to support automatic routing to PSAPs, it is technologically feasible to add the capability to route SMS text messages to a specific PSAP based on the sender's location. According to Intrado, SMS messages can be routed to the appropriate PSAP by adding a Text Positioning Center (TPC) to the existing wireless network. Intrado states that the TPC will “function like a [Mobile Position Center] associated with wireless voice calls” and that “[u]pon a mobile device's initial text-to-911, the TPC will determine the appropriate PSAP to which to route the text request for assistance.” Intrado also notes that the “routing determination will be based upon the location of the cell sector to which the mobile device is connected.” TCS similarly states that SMS messages can be routed to the appropriate PSAP “[b]y combining existing location technologies with existing SMS protocol capabilities.” The VON Coalition also notes routing challenges for third-party over-the-top application providers, which may not have direct access to caller location.

118. Discussion. Verizon and TCS have indicated that they will use coarse location as the basis for PSAP routing determination in their deployment of text-to-911. Moreover, according to the Tennessee Emergency Communications Board (TECB), “[t]he TECB would not have agreed to host the pilot [with AT&T] had it not included the capability for location information to travel with the text. The Tennessee pilot will include a texting solution that includes rough location information.” The coarse or rough location information as referred to by Verizon and TECB is the equivalent to the location of the cell sector from which the wireless 911 call is made—or generally E911 Phase I information under the Commission's E911 rules. Given the apparent technical feasibility of cell sector location and its actual use in text-to-911 trials to date, we propose that CMRS providers be required to route text messages automatically to the appropriate PSAP based on the cell sector to which the mobile device is connected. We also propose to define the “appropriate” PSAP presumptively for text-to-911 routing purposes to be the same PSAP that would receive 911 voice calls from the same cell sector. However, we recognize that in some instances, state or local 911 authorities may wish to have text messages routed to a different PSAP from the one that receives 911 voice calls from the same location (e.g., to have all 911 texts within a state or region routed to a single central PSAP rather than to individual local PSAPs). Therefore, we propose to allow designation of an alternative PSAP for routing purposes based on notification by the responsible state or local 911 authority. We seek comment on these proposals. We also seek comment on whether there are any technical obstacles or cost factors that could make it more difficult for some CMRS providers, such as small or rural carriers, to support automated routing of text messages to the appropriate PSAP.

119. We also seek comment on specific technical or informational challenges that third-party over-the-top messaging applications providers may face with respect to assessing caller location and the associated PSAP. Apple, for example, suggests that text-to-911 obligations should only attach for third-party text messaging applications where the applications is installed on a phone that meets the Commission's location accuracy requirements. Will this be sufficient to enable such applications to accurately route a 911 call to the appropriate PSAP? Are there other agreements or protocols that would be necessary between the third-party application provider and the underlying carrier to ensure appropriate routing? What would these entail?

120. Several commenters noted that spoofing could compromise the accuracy of location-based routing of SMS text messages to PSAPs. We note, however, that the proposed systems use systems not under the control of the caller to query for cell tower location. SMS messaging uses the same mechanism as calls to provide the originating number to the network, and thus, there is no unique attribute of text messaging that leaves it open to spoofing. We also note that the potential for spoofing already exists for VoIP calls to 911. As Vermont indicates with regard to its text-to-911 trial, “there is nothing about this new technology that is any more likely to result in `spoof' contacts than what we already deal with on the voice side of the system.” Accordingly, we seek comment on whether the potential for spoofing text messages is any greater than the potential for spoofing VoIP calls. Are there any actions that the Commission could take to minimize the risk of text-based spoofing?

121. Background. In the Notice, the Commission noted that some parties had expressed concerns about the inability of SMS to provide the sender's precise location. The Commission sought comment on ways to overcome this limitation. Specifically, the Notice asked whether it is technologically feasible for the recipient of an emergency SMS text message to query for the texting party's location using the phone number provided The Carrier-NENA-APCO Agreement does not specifically address location accuracy issues. However, the Carrier-NENA-APCO Agreement does limit the provision of text-to-911 to “the capabilities of the existing SMS service offered by a participating wireless service provider on the home wireless network to which a wireless subscriber originates an SMS message.”

122. Commenters indicate that, while it is feasible to use cell sector location to route emergency texts to the appropriate PSAP, it may be more difficult for CMRS providers to provide more precise location information in connection with text messages. Neustar notes that “some wireless operators use network based location determination mechanisms that depend on the handset being in a voice call to receive enough measurement data to determine the location of the caller accurately. Such networks could not be expected to respond with high resolution location information for texters. This will be truefor any SMS to 911 solution.” On the other hand, TCS indicates that its system would use “the same location technologies and strategies used today for 9-1-1 voice calls to both route the text message to the appropriate PSAP, and for delivering a more precise location of the sender to PSAP personnel.” TCS notes, however, that “the carrier's 9-1-1 location platform may not be able to provide location outside of a 9-1-1 voice call” and that “coarse [location] may be the only available location for initial service launch.” The VON Coalition expresses similar concerns with respect to providers of “over-the-top” text messaging applications in terms of their inability to access user location information.

123. Discussion. The record in this proceeding indicates that providing precise location information in connection with text messages is technically feasible but could involve significant changes and upgrades to existing SMS-based text networks. We are therefore concerned that it could initially be overly burdensome to require CMRS providers to comply with the Commission's Phase II E911 location accuracy rules when transmitting text messages to 911. While we recognize the importance of providing precise location information to PSAPs, we believe that the benefits of enabling consumers, particularly consumers with hearing and speech disabilities, to send SMS-based or non-SMS-based text messages to 911 outweigh the disadvantages of being unable to provide precise location information. Accordingly, we propose that the Commission's Phase II E911 location accuracy requirements not apply to the initial implementation of text-to-911. Nevertheless, we encourage the voluntary development of automatic location solutions for text-to-911 that provide at least the same capability as Phase II location information for voice calls to 911, even if the location solution does not use the same underlying location infrastructure. For example, messaging applications could transmit location information that is available on handsets using the data channel. Further, applications that use IP-based message delivery may also be able to include location information obtained via a mobile device API along with the text message. We also seek comment on whether operating system vendors or CMRS providers can facilitate the delivery of more precise location for interconnected text providers. Are there any other factors that the Commission should consider in regard to location delivery for interconnected text providers?

124. Background. Roaming enables wireless consumers to use mobile devices outside the geographical coverage area provided by their home network operator. In the Notice, the Commission asked whether it is technically feasible to determine the originating location of an emergency text message in all situations or whether it is feasible only in situations where the customer is not roaming. As noted above, the Carrier-NENA-APCO Agreement does not provide text-to-911 capability to wireless subscribers roaming outside of a subscriber's home wireless network. Because sending and receiving texts while roaming involves two networks, the consumer's home network and the visited roaming network, roaming may create issues for text-to-911 because of the greater technical complexity of routing the message to the correct PSAP based on the consumer's location. In the non-emergency context, when a wireless consumer sends an SMS message while roaming on a visited network, the visited network passes the text message via designated signaling links to the user's home network, which in turn sends the text message to its final destination.

125. Several commenters address text-to-911 in the context of roaming customers. In considering vendor proposals for text-to-911 solutions, NENA contends that applicable location requirements must be met regardless of whether a consumer initiates or continues a text-to-911 string through the consumer's home network or a roaming partner. Similarly, APCO argues that when a device roams to a visited network, 911 text messages must be capable of remaining connected with not only the PSAP, but also the specific call taker. T-Mobile voices a number of concerns about roaming, stating that “SMS-to-911 does not work when roaming.” T-Mobile further notes that “SMS for a T-Mobile customer roaming on another carrier's network remains supported by T-Mobile's network and messaging infrastructure, rather than by the carrier providing roaming. However, T-Mobile will not have location information when its subscriber is roaming, and thus can neither determine whether a roaming subscriber is in an area that supports text-to-911 nor route the 911 text to the appropriate PSAP.” U.S. Cellular stresses “the need for the FNPRM to include a discussion regarding the need for requirements to address customers sending texts to 911 while roaming outside of their carrier's network and for the resulting need to address interoperability across carrier networks.” Finally, Sprint Nextel urges the Commission to refer technical considerations like roaming to technical working groups and standards-setting bodies for further discussion.

126. Discussion. We agree with NENA and APCO that it is critical for consumers who are roaming to have the ability to text-to-911 during an emergency, and we further note that current voluntary measures do not provide for text-to-911 service while a subscriber is roaming. Accordingly, we seek comment on whether both the home and visited network operators must cooperate to support the delivery of the text to the appropriate PSAP serving the sender's location when a consumer sends a text message to 911 while roaming. We also seek comment on T-Mobile's assertion that its network is unable to collect location information on a roaming subscriber and is thus, technically limited from providing text-to-911 for roaming subscribers. Could the visited network intercept text-to-911 messages and determine the mobile device location? What technical and economic obstacles need to be addressed in order to provide text-to-911 service to consumers? How can these obstacles be overcome? We also seek comment on whether the same approach should apply to international roamers while they are located in the United States.

127. There appears to be general agreement that the NG911 architecture offers an IP standards-based interface protocol that supports the delivery of text messages, regardless of the technology used by the mobile device. While some PSAPs are currently NG911-capable, or soon will be, many other PSAPs will not be NG911-capable for an extended period of time, limiting their options for handling text messages in the interim. Thus, in order to implement text-to-911, particularly on a nationwide basis, the Commission must take the disparate capabilities of PSAPs into account. Accordingly, we propose a set of near-term options that would enable all PSAPs to accept text messages transmitted by CMRS or interconnected text providers, regardless of whether the PSAPs are NG911-capable. This proposed approach provides non-NG911-capable PSAPs with the flexibility to handle text messages in the near term without requiring PSAPs to fund significant upfront investments orupgrades. We seek comment on each option and the proposal as a whole.

128. We propose that text-to-911 service providers deliver text messages to NG911-capable PSAPs using a standardized NG911 protocol, such as the NENA i3 protocol. This will ensure a consistent format for delivery of text messages to all NG911-capable PSAPs. We seek comment on this proposal. Should the current NENA i3 protocol be the single protocol used for delivery of all text messages to NG911-capable PSAPs? How should we account for future releases of NENA i3 that may support additional protocol interfaces?

129. For non-NG911-capable PSAPs, several technical options are available that could be used for receipt of text messages. For its part, the Carrier-NENA-APCO Agreement allows PSAPs to “select the format for how messages are to be delivered.” We propose that non-NG911-capable PSAPs be allowed to choose among several options, and to designate a preferred option and one or more fallback options.

130. Under this option, a PSAP would receive text messages via a web browser installed in the PSAP (typically at one or more terminals used by PSAP call-takers) and connected to a third-party service provider. Verizon Wireless and TCS have stated that with respect to Verizon's roll-out of text-to-911, they will offer PSAPs the ability to receive text messages using the web browser approach. TCS states that it has “demonstrated a D-IP SMS client application that runs in a web browser and gives a PSAP call-taker who has connectivity to the IP-messaging network the ability to receive, view, and respond to the SMS 9-1-1 call.” This approach will require the PSAP to have Internet connectivity, but not full NG911 capability.

131. We seek comment on the web browser approach. Because many PSAPs already have Internet connectivity even if they are not NG911-capable, we believe that this approach would offer PSAPs a cost-effective alternative for receiving text messages without having to upgrade to NG911. We seek comment on what costs, other than Internet access, a PSAP would have to incur when implementing a web browser solution. For example, T-Mobile contends that TCS' web browser application would require PSAPs to upgrade their CPE. Is this accurate, and if so, what would the nature and cost of the required upgrade?

132. We also seek comment on how the web browser option should be implemented in a multi-party environment where multiple web browser options and applications may be available to both PSAPs and text-to-911 service providers. For example, it is possible that individual text-to-911 service providers could offer different web browser applications to the same PSAP, requiring the PSAP to either support all of the offered applications or to request that the providers use a common application. Alternatively, neighboring PSAPs could select different web browser applications from one another, requiring a text-to-911 service provider serving both PSAPs to support multiple applications or to request that the PSAPs choose a common application.

133. As a practical matter, we expect that many of these issues can be resolved through development by vendors of standards-based interoperable web applications that enable CMRS providers, interconnected text providers, and PSAPs to choose single-source solutions rather than having to support multiple solutions. Nevertheless, we seek comment on how such issues should be resolved where CMRS providers, interconnected text providers, and PSAPs cannot agree on a common web browser solution. Specifically, if the PSAP chooses to receive text messages via web-based delivery, under what circumstances should CMRS or interconnected text providers be obligated to accommodate the PSAP's choice of web browser application? If the PSAP uses a service provider (“text service provider”) to render text messages to a web browser, as appears likely based on the service trials, a problem would arise only if two CMRS or third-party text providers use different service providers on their end to route text-to-911 messages. In that scenario, we proposed to allow the PSAP to designate its text service provider as the recipient of text messages under two conditions. First, the PSAP text service provider must accept text messages using industry-standard protocols, such as the NENA i3 standard. Second, the PSAP text service provider must not charge the CMRS or interconnected text provider a fee for delivering such messages. We seek comment on this proposal.

134. Under this option, a PSAP would receive text messages via a gateway center where emergency-trained telecommunicators would translate between text and voice. The gateway center would operate in a manner similar to a telematics call center of the kind that telematics providers such as OnStar use to handle emergency calls from their subscribers and transmit such calls to 911. Telematics providers use cell-site location to determine the caller's location, match the location to the associated PSAP, and then use VoIP-based routing to connect with the PSAP over its 911 trunks. Intrado has proposed a similar solution for delivery of text messages through a gateway.

135. Some commenters express concerns about implementing a gateway approach. T-Mobile notes that “a national SMS relay center does not exist today, and would have to be created and funded, which also cannot be accomplished rapidly.” Sprint submits that Intrado's proposal “would require the installation of extensive infrastructure to adapt wireless networks to the solution. Whether this proposal could ultimately be successful nationwide as an interim text-to-911 solution cannot be gauged, since testing has been very limited to date.”

136. We seek comment on the feasibility of establishing one or more gateway centers for translation and transmission of text messages to PSAPs. What are the potential costs of implementing this approach, and how would such costs be allocated? Are CMRS providers or vendors offering text-to-911 services likely to develop and offer a gateway option to non-NG911-capable PSAPs? Are non-NG911-capable PSAPs likely to choose this option over the web browser or TTY-based delivery options if it is available?

137. We also seek comment on how best to ensure that text-to-voice translation offered as part of the gateway option does not lead to harmful delays in communication between the sender and the PSAP. We anticipate that with proper certification and training, telecommunicators will be able to handle these responsibilities efficiently and professionally with a minimum of delay. We also anticipate that as an increasing number of PSAPs become capable of accepting IP-based text, the number of 911 text messages that will require text-to-voice translation will decrease, though text-to-voice or text-to-TTY (see below) may continue to be necessary until all PSAPs have been upgraded.

138. Under this option, text messages would be converted into TTY calls that the PSAP would receive over its existing TTY facilities. Since all PSAPs already have TTY capability, this is potentiallya very low-cost solution that can be deployed relatively quickly. Moreover, this solution supports direct communication between the sender and the PSAP.

139. A number of commenters express support for this option. Neustar contends that using TTY to transmit SMS-originated text messages is a viable interim solution that could “bridge the gap” before and during the transition to NG911. Neustar notes that “almost all mobile phones are SMS capable but cannot do TTY and almost all PSAPs [are] TTY capable but cannot handle SMS.” Neustar further asserts that this option could be implemented at minimal cost because “carriers would only need to make small investments in providing cell ID query mechanisms where they are not already deployed for itinerate use, and PSAPs should be able to handle text-to-911 using their existing TTY equipment.” Verizon Wireless and TCS have stated that they intend to permit PSAPs that lack Internet connectivity to receive text messages using this approach.

140. On the other hand, some commenters state that TTY is an outdated technology that could be susceptible to errors in an automated text-to-TTY translation process. T-Mobile states that TTYs “are not sized for general public use” and “present their own technical problems.” T-Mobile also contends that investment in TTYs would be a dead end investment, that TTYs are asynchronous and use Baudot tones, and that the half-duplex nature of TTYs can lead to messages being garbled if the texting party and PSAP call taker send messages over the top of one another. INdigital submits that “using the TTY protocol with a 1% total character error rate * * * imposes a technical requirement that is nearly impossible to meet.” T-Mobile asserts that “many PSAPs have a limited number of TTY-equipped answering stations [and that] the capital investment required to handle the much larger volume of messages that would result from a general public SMS-to-911 system could be substantial for cash-strapped PSAPs.” APCO adds that PSAPs “us[ing] standalone TTY devices * * * will face additional challenges if the volume of calls to these legacy devices increase[s] dramatically.”

141. We seek comment on the feasibility and potential costs and benefits of making the text-to-TTY approach available as a text delivery option for CMRS providers, interconnected text providers, and PSAPs. Given the age and technical limitations of the PSAPs' existing TTY equipment, are PSAPs capable of handling a volume of text messages transmitted over TTY from the general public that could be much larger than the low current volume of TTY 911 traffic? Could the technical problems associated with TTYs result in translation errors? Are there measures that could be taken to improve the capacity and reliability of TTY equipment to handle text-to-911? Are larger PSAPs likely to make use of TTYs to receive text-to-911 messages, compared to the other options discussed earlier? Do most PSAPs have stand-alone TTY devices or are these more likely to be built into the call taker equipment and would thus be able to handle a larger text volume?

142. Under this option, a state or regional 911 authority could designate a NG911-capable PSAP to receive and aggregate 911 text messages over a large region served by multiple non-NG911-capable PSAPs, such as a county, a multi-county region, or an entire state. The NG911-capable PSAP would exchange text messages with the caller and then communicate by voice with the non-text-capable PSAP that serves the caller's location. This approach is being applied in the Black Hawk County, Iowa text-to-911 trial, where the Black Hawk County PSAP accepts text messages from any i-Wireless user located in the state, thus acting as a gateway for other PSAPs in the state.

143. We seek comment on this approach. In general, allowing 911 authorities to aggregate handling of text messages through a single PSAP on a statewide or regional basis could accelerate the availability of text-to-911 and lead to cost savings in its implementation. This approach would also minimize the operational and technological impact of text-to-911 for non-text-capable PSAPs. However, relaying text messages from the designated PSAP to other PSAPs in the state or region could lead to delay in responding to emergency text as compared to emergency voice calls. We seek comment on what measures, if any, could reduce the risk of such delay.

144. In order for CMRS and interconnected text providers to deliver and PSAPs to receive emergency texts under the framework proposed in this Further Notice, a mechanism will be needed for each PSAP to notify providers (or their text-to-911 vendors) that it is prepared to accept text messages and indicating the delivery option it has chosen. In the Notice, the Commission sought comment on the possibility of developing a centralized routing database or databases that would identify which PSAPs are accepting text-to-911 messages and the routing a delivery method selected by each PSAP. The Carrier-NENA-APCO Agreement does not specify a specific notification procedure; however, it defines a “valid request” for text-to-911 service as one in which “the requesting PSAP represents that it is technically ready to receive 911 text messages in the format requested,” and “the appropriate local or State 911 service governing authority has specifically authorized the PSAP to accept and, by extension, the signatory service provider to provide, text-to-911 service (and such authorization is not subject to dispute).”

145. In its comments, Bandwidth.com proposes a gateway architecture that includes a database of all PSAPs with their preferences for handling text messages. This approach would arguably have efficiency advantages because it would enable PSAPs to provide notification regarding text delivery only once to all parties, rather than having to inform every wireless carrier or systems service provider individually. It would also enable providers of text-to-911 routing services to coordinate their databases for the routing of text messages. We seek comment on the feasibility and cost of implementing a gateway architecture or database mechanism. If such coordination is desirable, how can it be encouraged or facilitated? What entity should operate the database? How should PSAPs declare their preferences? Can the registry of preferences be implemented as an extension of the Commission's PSAP database? Should there be a default preference to ensure that PSAPs that do not declare their text delivery option by a certain date are then assumed to prefer text-to-TTY delivery, since that option should be available without further PSAP action? What constitutes a valid notification? The Carrier-NENA-APCO Agreement requires an appropriate local or State 911 service governing authority to specifically authorize a PSAP to accept text-to-911. Should this be a requirement for a valid notification?

146. We seek comment on the feasibility and cost of implementing Bandwidth.com's proposal or a similar gateway architecture or database mechanism. This approach would arguably have efficiency advantages because it would enable PSAPs to provide notification regarding text delivery only once to all parties, rather than having to inform every CMRS provider or systems service providerindividually. It would also enable providers of text-to-911 routing services to coordinate their databases for routing text messages, via the ECRF. If such coordination is desirable, how can it be encouraged or facilitated? How should PSAPs declare their preferences? Should there be a default preference to ensure that PSAPs that do not declare their text delivery option by a certain date are assumed to prefer text-to-TTY delivery, since that option should be available without further PSAP action? Who should operate such a database? Can this registry of preferences be implemented as an extension of the Commission PSAP database?

147. While we seek to structure our proposals to keep text-to-911 costs as low as possible for both text-to-911 service providers and PSAPs, we seek comment on whether there are additional actions that the Commission could take to enable text-to-911 service providers and PSAPs to recover their costs. We note that under the Carrier-NENA-APCO Agreement, signatory providers agreed to provide text-to-911 “independent of their ability to recover these associated costs from state or local governments.” At the same time, the Carrier-NENA-APCO Agreement requires that “incremental costs for delivery of text messages (e.g. additional trunk groups to the PSAP's premises required to support TTY delivery) will be the responsibility of the PSAP, as determined by individual analysis.”

148. Background. In response to the Notice, a number of CMRS commenters express concerns over funding text-to-911. CTIA states that “[a]ppropriate funding is a significant uncertainty given the considerable resources that would be needed to deploy text-to-911 capabilities on a nationwide basis.” RCA notes that “[c]oncern for adequate funding of future 911 systems is widespread and the increasing burden on wireless and IP-based providers to maintain the 911 system moving forward is troubling.”

149. Vendors contend that existing 911 cost allocation mechanisms can be used to recover the cost to implement near-term text-to-911 for both CMRS providers and PSAPs. Intrado asserts that the cost of every “functional element” of a text-to-911 solution “can be allocated to wireless carrier networks and PSAPs consistent with how they are assigned today under the Commission's King County demarcation ruling.” Intrado submits that, depending on which “functional elements” PSAPs choose to implement at each stage of text-to-911, “the cost allocations can be changed if funding considerations dictate.”

150. Some commenters suggest that existing funding mechanisms, such as TRS and the Universal Service Fund (USF) could be applied to recover costs of text-to-911 implementation. Intrado contends that “the FCC can and should determine that SMS is eligible for TRS funding to the same extent that IP-Relay is eligible for TRS funding.” Bandwidth.com submits that “a default destination for text messages that do not have location info must be determined” and contends that “[t]he TRS/VRS and IP Relay service providers provide an excellent option for this function given their existing role in facilitating communications between deaf or hard-of-hearing callers and PSAP personnel.” NASNA also urges the Commission to consider “[u]se of the Universal Service Fund to assist States and regions with the costs of NG911.”

151. Discussion. We believe that existing cost recovery mechanisms are sufficient to support implementation of text-to-911 under the framework presented in this Further Notice. Generally, CMRS providers recover their 911 implementation costs from their subscriber base. Since CMRS providers already support SMS and other texting applications in their networks, and have the ability to recover costs of those applications from their customers, it appears that the primary additional cost for CMRS providers to implement text-to-911 will be to establish and support the specific routing and relay functions needed to transmit emergency text messages to PSAPs. Additionally, under the Carrier-NENA-APCO Agreement, the major carriers have agreed to provide this service independent of cost recovery from state or local governments. The record indicates that the incremental cost would be in the range of $4 million annually.

152. We also note that an additional source of funding to reimburse wireless carriers for their 911 service implementation costs can be found in certain cost recovery programs that have been established through state legislation. Most states have reported to the Commission that “they used the fees or surcharges that they collected for 911/E911 service solely to fund the provision of 911/E911 service.” Dependent on the regulatory mechanism set forth in each statute, states distribute funding either to the carriers directly, or to a designated state or local entity which then reimburses carriers. For example, Alabama provides that “20% of the service charges collected are retained by the [States' Wireless 9-1-1] board * * * to reimburse wireless service providers for Phase I and II expenses.” In comparison, Nebraska provides that from its 911 fund “payments are also made directly to wireless carriers for costs incurred for the provision of enhanced wireless 911 services.” Though the means and extent to which carriers receive state-prescribed reimbursement for 911 implementation costs vary from state to state, we find that such cost recovery programs are an available and significant source of funding that can facilitate the roll-out of text-to-911 capability. Moreover, some states have started to apply their 911 funding to initiate deployment of full NG911 capabilities.

153. Additionally, many states allow qualifications for cost to include NG911-capable components for which CMRS providers might recover their outlays. For example, Verizon and Verizon Wireless note that “[m]any state and local governments have * * * begun reconfiguring their funding mechanisms to facilitate NG911 deployment. We find that such actions could provide CMRS providers with additional funding flexibility to develop routing and gateway functions. We seek comment on this view and request that commenters update the Commission on any such efforts that are underway.

154. We also seek comment on whether USF funding could play a role in cost recovery, particularly for low-cost text to-911 options such as the TTY-based approach. Could using these funding mechanisms expedite text-to-911 implementation? What modifications, if any, would the Commission have to make to these funding programs to achieve those objectives? In commenting on these approaches, commenters should consider the Commission's recent amendment of its universal service rules to specify that the functionalities of eligible voice telephony services include, among other things, access to 911 and E911 emergency services to the extent the local government in an eligible carrier's service area has implemented 911 or E911 systems. The Commission noted that Eligible Telecommunications Carriers (ETCs) “will be required to comply with NG911 rules upon implementation by state and local governments.”

155. Finally, we seek comment on current or potential approaches that would enable third party interconnected text providers to receive cost recovery for obligations they may have to provide services and offerings to implement text-to-911 capabilities. In view of thefunding mechanisms in several states for CMRS providers to receive cost recovery, we seek comment on whether such state level mechanisms might currently apply to enable interconnected text providers to receive cost recovery in complying with text-to-911 obligations proposed in this Further Notice. We also seek comment on whether states or other jurisdictions provide or plan to provide cost recovery mechanisms that could apply to interconnected text providers. We note that under our proposed framework, the infrastructure used by interconnected text providers would be similar to the infrastructure used by CMRS providers for the delivery of text messages to a PSAP. We seek comment on whether this would facilitate extending existing cost recovery mechanisms on CMRS providers to interconnected text providers.

156. Background. A number of public safety commenters express concerns about funding, noting that many PSAPs are subject to state and local regulatory mandates that may affect their ability to fund the implementation of text-to-911 service. APCO asserts that “[m]any PSAPs are mandated to answer 90% of their incoming 9-1-1 calls in 10 seconds or less to qualify for receipt of wireless surcharge and other 9-1-1 funds.” APCO further contends that “[i]t is unlikely that these * * * mandates will be modified to accommodate the additional time that interim solution based text calls may have on the PSAP's ability to meet these standards.” APCO argues that, consequently, “implementing SMS text-to-9-1-1 may jeopardize some PSAPs eligibility for surcharge funds.” NATOA concurs, stating that “localities could lose vital 911 fees and other funding in the event they fail to meet performance mandates due to the increased time necessary to handle text-based calls.” Other commenters, however, assert that recent trials have not substantiated the alleged increase in call-taking time due to the characteristics of SMS text.

157. Wireless carrier commenters also question whether PSAPs have the necessary funding to support the transition to text-to-911. The Blooston Rural Carriers argue that “at this point in time and for the foreseeable future, PSAPs are simply not equipped (and will not be equipped) to process SMS text-to-911 transmissions, and the costs associated with the PSAP upgrades needed to achieve this capability are apt to be great.” Verizon and Verizon Wireless assert that “many PSAPs will need to secure funding sources, all will need time to upgrade their own networks and facilities and train personnel, and all will need to educate consumers on where NG911 is available. * * *.” Verizon and Verizon Wireless further submit that “the Commission should avoid mandates for short-term solutions that would force NG911 to compete with SMS-based solutions for PSAP and service provider resources.” 4G Americas cites the “[s]carce funding for PSAP NG911 upgrades [a]s a major concern” and argues that “[it] would do little good to mandate carrier near-term deployment of technologies that would require massive investments by PSAPs or require a complete overhaul of existing emergency communications systems.”

158. In view of perceived funding difficulties, both public safety commenters and CMRS providers advocate a regional or state-level approach to lower costs and generate economies of scale in implementing near-term text-to-911 as well as facilitating a transition to NG911. CTIA contends that “[a] statewide approach to NG911 deployment will encourage wireless service providers and PSAPs to coordinate their efforts to deploy requested services in a reasonable and efficient manner and mitigate public confusion regarding the capabilities available to a local PSAP.” Verizon and Verizon Wireless submit that “[a] statewide approach provides a bright-line mechanism that is consistent with funding mechanisms, which are generally governed at the state level * * *.” Verizon and Verizon Wireless refer to a “current trend in state governments toward greater PSAP consolidation and statewide coordination of NG911 efforts.” King County notes that “it may not be feasible to fund the upgrades necessary for NG911 at the state's 64 PSAPs” and that “[t]he State E911 Office and the NG911 Subcommittee have developed a plan for the centralization of equipment at various hubs throughout the state that will serve multiple PSAPs in order to reduce equipment upgrade costs.” Verizon and Verizon Wireless remark that “[i]t is not necessary that every jurisdiction within a state be NG911 capable prior to a service provider's initiation of service within the state.” RCA adds that “the current economic climate and need for financial restraint make consolidation of PSAPs an essential part of the transition to NG911” and that “[c]onsolidation is one of the most important preliminary steps on the path to widespread NG911 deployment.”

159. Further, NENA contends that “[i]t will prove most efficient if requests for text service originate from these larger units, reducing costs for both the public and the providers called upon to provide service.” NENA cautions, however, “that 9-1-1 remains * * * [a local service] that, in many states, is provided by small local agencies below the county level with little or no higher level coordination or oversight.” “[T]o maintain the autonomy to which 9-1-1 system operators have become accustomed,” NENA suggests that the Commission “refrain from mandating a regional or state-wide approach to system readiness showings, and instead make such aggregated showings optional, at the election of the states.”

160. Discussion. PSAPs generally pay for their 911 costs from state and local revenues generated by monthly 911 fees that CMRS providers collect from their subscribers. Wireless carriers argue that cost recovery regulations in many jurisdictions are inadequate to meet PSAP funding needs for text-to-911. Verizon and Verizon Wireless note that “[s]ome jurisdictions impose significant restrictions on use of 911-related fees or taxes by limiting the use of such monies for traditional local exchange and commercial mobile radio services, or imposing explicit restrictions on the types of equipment and services that may be purchased.” Verizon and Verizon Wireless add that “[s]tate and local jurisdictions that face funding constraints may, if given a choice between a costly SMS-based solution versus a more robust IP-enabled NG911 technology, opt for the former.” Although “a particular jurisdiction [could] fund both direct SMS and NG911 solutions, such an outcome could result in even higher fees imposed on consumers with marginal additional public safety benefit.”

161. As discussed above, we propose several options that consider the disparities in PSAPs' current technical capabilities and that enable non-NG911-capable PSAPs to handle texts without significant cost or upgrades. For instance, both the Web delivery and the TTY-translation options is a low cost alternative because PSAPs already have TTY capability. While this option employs an IP-gateway to facilitate routing functions compared to the traditional relay function of TTY/TDD, we believe that, in view of the relatively low cost to PSAPs to implement TTY-translation-based text-to-911, existing funding mechanisms can serve to defray the costs. Similarly, PSAPs that choose the gateway center option can limit costs by using already-trained CAs to translate between text and voice.

162. Moreover, contrary to Verizon and Verizon Wireless' assertion thatfunding for interim text-to-911 solutions would adversely affect the resources available to support a transition to full NG911 capabilities, we believe that the low cost options discussed above constitute a reasonable and cost efficient alternative to resolving possible limitations in funding at the state or local level. Additionally, we note that under the current Carrier-NENA-APCO Agreement, PSAPs would be responsible for their incremental costs for delivery of text messages. We seek comment on this view.

163. Based on our proposal to offer PSAPs an array of text-to-911 delivery options, including options that entail very limited cost, we believe that existing funding mechanisms constitute a sufficient resource to implement text-to-911 within our proposed time frame. We seek comment on this approach. We also seek comment on whether these funding mechanisms could be applied to other IP-based component upgrades. If not, what modifications need to occur? Are there actions the Commission could take to encourage or facilitate those modifications at the state or regional level? We invite comment on approaches that the Commission could pursue to encourage the states or regional entities to address such changes in funding to incentivize deploying the necessary text-to-911 upgrades within the proposed timeframe.

164. Background. In general, liability protection for provision of 911 service is governed by state law and has traditionally been applied only to LECs. However, Congress has expanded the scope of state liability protection by requiring states to provide parity in the degree of protection provided to traditional and non-traditional 911 providers, and more recently, to providers of NG911 service. In 2008, Congress enacted the New and Emerging Technologies 911 Improvement Act (Net 911 Act), which provides that a “wireless carrier, IP-enabled voice service provider, or other emergency communications provider * * * shall have” the same liability protection as a local exchange carrier under federal and state law. In February 2012, Congress further extended state liability protection to providers of NG911 service in the Next Generation 9-1-1 Advancement Act of 2012. The Next Generation 911 Advancement Act provides that “a provider or user of Next Generation 9-1-1 services * * * shall have immunity and protection from liability under Federal and State law [to the extent provided under section 4 of the Wireless Communications and Public Safety Act of 1999],” with respect to “the release of subscriber information related to emergency calls or emergency services,” “the use or provision of 9-1-1 services, E9-1-1 services, or Next Generation 9-1-1 services,” and “other matters related to 9-1-1 services, E9-1-1 services, or Next Generation 9-1-1 services.”

165. In the Notice, which was released prior to the Next Generation 911 Advancement Act, the Commission asked whether the liability provisions in the NET 911 Act embrace the full range of technologies and service providers that will be involved in the provisioning of NG911 services. The Notice also asked whether the Commission has the authority to extend liability protection to entities involved in the provisioning of NG911 services or whether Congressional action is necessary.

166. In response to the Notice, numerous commenters argue that liability protection is essential as part of any extension of 911 requirements to include text. Commenters also assert that the lack of express liability protection for NG911 has hampered the deployment of NG911 networks. Commenters also argue that federal law requiring parity in state law protection does not adequately protect 911 and NG911 service providers because the scope of underlying liability protection is dictated by state law and varies from state to state. AT&T, for example, argues that “liability protection presently provided under the NET 911 Act is insufficient because it is tied to the protection afforded under various state laws and, often, a local exchange carrier's tariff.” Motorola argues that “[n]ational consistency in liability protection will be essential to encouraging investment and promoting a smooth NG911 transition.”

167. Discussion. We recognize that adequate liability protection is needed for PSAPs, CMRS providers, third party interconnected service providers, and vendors to proceed with implementation of text-to-911 as contemplated in this Further Notice. The recent passage of the Next Generation 911 Advancement Act has significantly expanded the scope of liability protection and potentially resolved some of the issues raised by commenters by making clear that states must provide the same level of protection for NG911 as for traditional 911 and E911. We also note that under the Carrier-NENA-APCO Agreement, the four major wireless carriers have committed to deploy text-to-911 capability throughout their nationwide networks without any precondition requiring additional liability protection other than the protection that is provided by current state and Federal law. Nevertheless, we seek comment on whether there are additional steps the Commission could take—consistent with our regulatory authority—to provide additional liability protection to text-to-911 service providers. We also seek comment on whether the combined parity protection afforded by the NET 911 Act and the Next Generation 911 Advancement Act extends to all providers of text-to-911 service, regardless of whether such service is provided using pre-NG911 or NG911 mechanisms. We seek comment on whether providers of text-to-911 service have sufficient liability protection under current law to provide text-to-911 services to their customers, or whether additional protection may still be needed or desirable.

168. We seek comment on the Commission's authority to apply the automated error message and more comprehensive text-to-911 rules proposed herein to both CMRS providers and other entities that offer interconnected text messaging services (including third-party providers of “over-the- top” text messaging applications). In doing so, we incorporate herein the portions of our 2011 Notice regarding the Commission's authority to adopt text-to-911 rules. We note that, in response to our 2011 Notice, numerous parties addressed the Commission's authority to adopt text-to-911 rules under the CVAA, Title III, and our ancillary authority. Since then, we have modified our proposals and taken into account recent developments regarding the deployment of text-to-911 offerings, including the recent Carrier-NENA-APCO Agreement.

169. We now ask parties to refresh the record on the legal authority issues and to address their comments to the particular rules being proposed herein. Specifically, we ask commenters to address the Commission's authority under the CVAA to apply the proposed rules to this circumstance, and in particular to other entities that offer interconnected text messaging service. In this regard, we seek comment on how the Commission's “authority to promulgate regulations to implement the recommendations proposed by” EAAC applies to this circumstance. Would the Commission's decision to adopt the proposed text-to-911 rules implement EAAC recommendation P4.1, titled “Interim Text Access,” or recommendation T1.2, titled “Interim Mobile Text Solution”? Are there otherEAAC recommendations relevant to our authority under Section 615c(g)? We also invite comment on how the Commission's authority to promulgate “any other regulations, technical standards, protocols, and procedures as are necessary to achieve reliable, interoperable communication that ensures access by individuals with disabilities to an Internet protocol-enabled emergency network, where achievable and technically feasible” applies to these proposals, and in particular to other entities that offer interconnected text messaging service.

170. In addition to the CVAA, we ask commenters to address the Commission's authority under Title III, including our authority under Sections 301, 303, 307, 309, and 316, to adopt the rules proposed herein. We note that, when analyzing our legal authority in the 2011 Notice, we stated our “belie[f] that we have well-established legal authority under * * * Title III provisions to take the regulatory and non-regulatory measures described [t]herein that would apply to users of spectrum.” Since then, the D.C. Circuit provided additional guidance regarding the scope of our Title III authority in Cellco Partnership v. FCC. We now seek additional comment on our Title III authority in light of this decision.

171. Among other points, we seek comment on whether Title III grants the Commission authority to apply the proposed rules to third-party interconnected text providers and, if so, which specific provisions of Title III apply to them. Does the Commission's Title III authority over those entities depend on how they offer their service? For example, does the FCC's Title III authority over them turn on whether the entity holds a Commission's license or other authorization, and, if so, whether such authorization is integral to that entity's interconnected texting service? Do any third-party interconnected text messaging providers hold any such authorizations? We also ask commenters to address the Commission's authority to impose regulations on CMRS providers that indirectly affect third-party providers. For example, does the Commission have authority to require CMRS providers to take steps to prevent the use of certain third-party applications that do not support text-to-911? If so, would such steps be consistent with the Commission's open platform requirements for the 700 MHz C Block and other agency precedent?

172. We also ask commenters to address the Commission's ability to rely on its ancillary authority to adopt the rules proposed herein. The Commission may act pursuant to its ancillary authority when “(1) the Commission's general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities.” We ask commenters to discuss both prongs of this test. Would the Commission's decision to adopt the proposed rules be ancillary to certain Title III provisions, the CVAA, or other statutory provisions? Is application of the proposed rules to all providers of interconnected text-messaging services necessary to avoid consumer confusion or achieve the public safety benefits associated with applying such rules to CMRS providers? We seek comment on these questions.

173. The proceedings initiated by this Further Notice of Proposed Rulemaking shall be treated as a “permit-but-disclose” proceedings in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

174. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments in response to this Further Notice of Proposed Rulemaking on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

•Electronic Filers:Comments may be filed electronically using the Internet by accessing the ECFS:http://fjallfoss.fcc.gov/ecfs2/.

•Paper Filers:Parties that choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

175. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

176. As required by the Regulatory Flexibility Act of 1980,see5 U.S.C. sec. 604, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth in Appendix B. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this Further Notice of Proposed Rulemaking as set forth on the first page of this document, and have a separate and distinct heading designating them as responses to the IRFA.

177. The Further Notice of Proposed Rulemaking contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by PRA. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

178.It is further ordered,pursuant to Sections 1, 2, 4(i), 7, 10, 201, 214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 316(a), 332, 615a, 615a-1, 615b, 615c(a), 615c(c), 615c(g), and 615(c)(1) of the Communications Act of 1934, 47 U.S.C. sec. 151, 152(a), 154(i), 157, 160, 201, 214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 316(a), 332, 615a, 615a-1, 615b, 615c, 615c(c), 615c(g), and 615(c)(1) that this Further Notice of Proposed Rulemaking is herebyadopted.

179.It is further orderedthat the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,shall senda copy of this Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 20 as follows:

This is a summary of the Commission's Order in MB Docket No. 12-217, DA 12-2081, adopted and released on December 21, 2012, which extends the reply comment filing deadline established in the NPRM published under FCC No. 12-86 at 77 FR 61351, October 9, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:http://www.fcc.gov.Alternative formats are available to persons with disabilities by sending an email tofcc504@fcc.govor by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. The NPRM in this proceeding established a comment deadline of December 8, 2012, and a reply comment deadline of January 7, 2013. On December 21, 2012, the National Association of Telecommunications Officers and Advisors (“NATOA”) requested that the reply comment deadline be extended by five weeks, to allow for additional time to compile records in response to assertions made by other commenters, and to permit time for discussions with other commenters regarding differences in the positions taken in their comments. We grant NATOA's request in part.

2. As set forth in Section 1.46 of the Commission's Rules, 47 CFR 1.46(a), of the Commission's Rules, the Commission's policy is that extensions of time shall not be routinely granted. Given the importance of the issues in this proceeding, and in the interest of encouraging thoughtful consideration of these issues, however, we believe that granting in part NATOA's request is necessary to facilitate the development of a full record. However, we feel that five weeks is unnecessarily long to accomplish these goals and note that parties may avail themselves of the ex parte process after the submission of their reply comments if necessary. Therefore, we grant an extension of 18 days, until January 25, 2013 for file reply comments.

Pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and §§ 0.61, 0.283, and 1.46 of the Commission's rules, 47 CFR 0.61, 0.283, and 1.46, the Motion for Extension of Time to File Reply Comments filed by NATOAis granted in part,and the deadline to file reply comments in this proceeding is extended to January 25, 2013.