
[Federal Register: June 5, 2009 (Volume 74, Number 107)]
[Rules and Regulations]               
[Page 26965-26981]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn09-12]                         

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

47 CFR Part 400

[Docket No. NHTSA-2008-0142]
RIN 2127-AK37

 
E-911 Grant Program

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

ACTION: Final rule.

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SUMMARY: This joint Final Rule implements the E-911 grant program 
authorized under the Ensuring Needed Help Arrives Near Callers 
Employing 911 (ENHANCE 911) Act of 2004 (Pub. L. 108-494, codified at 
47 U.S.C. 942). The Act authorizes grants for the implementation and 
operation of Phase II enhanced 911 services and for migration to an IP-
enabled emergency network. To qualify for a grant, an applicant must 
submit a State 911 plan and project budget, designate an E-911 
coordinator, and certify, among other things, that the State and other 
taxing

[[Page 26966]]

jurisdictions within the State have not diverted E-911 charges for any 
other purpose within 180 days preceding the application date. This 
Final Rule establishes the requirements an applicant must meet and the 
procedures it must follow to receive an E-911 grant.

DATES: This Final Rule becomes effective on June 5, 2009.

FOR FURTHER INFORMATION CONTACT: For program issues: Mr. Drew Dawson, 
Director, Office of Emergency Medical Services, National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue, SE., NTI-140, 
Washington, DC 20590. Telephone: (202) 366-9966. E-mail: 
Drew.Dawson@dot.gov.
    For legal issues: Ms. Jin Kim, Attorney-Advisor, Office of the 
Chief Counsel, National Highway Traffic Safety Administration, 1200 New 
Jersey Avenue, SE., NCC-113, Washington, DC 20590. Telephone: (202) 
366-1834. E-mail: Jin.Kim@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Statutory Requirements
III. Notice of Proposed Rulemaking
IV. Comments
    A. In General
    B. Definition of IP-Enabled Emergency Network
    C. States Applying on Behalf of All Eligible Entities
    D. Application: State 911 Plan
    1. Coordination
    2. Direct Benefit of PSAPs
    3. Involvement of Integrated Telecommunications Services
    E. Application: Project Budget and Supplemental Project Budget
    F. Application: Match Requirement
    G. Application: Designation of E-911 Coordinator
    H. Application: Certification Concerning Diversion of Funds
    I. Distribution of Grant Funds: Formula
    J. Eligible Use of Grant Funds
V. Statutory Basis for This Action
VI. Regulatory Analyses and Notices
    A. Executive Order 12866 and Regulatory Policies and Procedures
    B. Regulatory Flexibility Act
    C. Executive Order 13132 (Federalism)
    D. Executive Order 12988 (Civil Justice Reform)
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act
    G. National Environmental Policy Act
    H. Executive Order 13175 (Consultation and Coordination With 
Indian Tribes)
    I. Regulatory Identifier Number (RIN)
    J. Privacy Act
    K. Congressional Review of Agency Rulemaking

I. Background

    Trends in telecommunications mobility and convergence have put the 
nation's 911 system at a crossroads. The growing market penetration of 
both wireless telephones (commonly known as mobile or cell phones) and 
Voice over Internet Protocol (VoIP) telephony have underscored the 
limitations of the current 911 infrastructure. The 911 system, based on 
decades-old technology, cannot handle the text, data, image and video 
that are increasingly common in personal communications and critical to 
emergency response.
    Many of the limitations of the current 911 system stem from its 
foundation on 1970s circuit-switched network technology. Each 
introduction of a new access technology (e.g., wireless) or expansion 
of system functions (e.g., location determination) requires significant 
engineering and system modifications. There appears to be consensus 
within the 911 community on the shortcomings of the present 911 system 
and the need for a new, more capable system, based upon a digital, 
Internet-Protocol (IP) based infrastructure.
    Today, there are approximately 255 million wireless telephones in 
use in the United States. About 80 percent of Americans now subscribe 
to wireless telephone service and 14 percent of American adults live in 
households with only wireless telephones, i.e., no landline telephones. 
Of the estimated 240 million 911 calls made each year, approximately 
one-third originate from wireless telephones. In many communities, at 
least half of the 911 calls come from wireless telephones. Unlike 
landline 911 calls, not all wireless 911 calls are delivered to 
dispatchers with Automatic Number Information (ANI) and Automatic 
Location Information (ALI), two pieces of information that aid in 
identifying the telephone number and geographic location of the caller. 
The increasing use of VoIP communications has compounded this problem 
because the location of the caller cannot automatically be determined 
when a 911 call is made on some interconnected VoIP services. Without 
this information, emergency response times may be delayed. Prompt and 
accurate location information is critical to delivering emergency 
assistance. Ensuring enhanced 911 (E-911) service for each caller, 
i.e., telephone number and location information of the caller, is 
increasingly important to public safety, given the vast number of 911 
calls originating from wireless and VoIP telephones.
    Successful E-911 service implementation requires the cooperation of 
multiple distinct entities: Wireless carriers, wireline telephone 
companies (also known as local exchange carriers), VoIP providers, and 
Public Safety Answering Points (PSAPs). A PSAP is a facility that has 
been designated to receive emergency calls and route them to emergency 
personnel. For example, when a 911 call is made from a wireless 
telephone, the wireless carrier must be able to determine the location 
of the caller, the local exchange carrier must transmit that location 
information from the wireless carrier to the PSAP, and the PSAP must be 
capable of receiving such information.
    Currently, many PSAPs are not technologically capable of receiving 
ANI and ALI from wireless 911 calls. In order to receive this 
information, PSAPs must upgrade their operations centers and make 
appropriate trunking arrangements (i.e., establish a wired connection 
between the PSAP and the networks of the local wireline telephone 
companies) to enable wireless E-911 data to pass from the wireless 
carrier to the PSAP. Once a PSAP is technologically capable of 
receiving this information, the PSAP can submit requests to wireless 
carriers for E-911 service. Under Federal Communications Commission 
(FCC) regulations, this request triggers a wireless carrier's 
obligation to deploy E-911 service to a PSAP.
    Upgrading the 911 system to an IP-enabled emergency network will 
enable E-911 calls from more networked communication devices, enable 
the transmission of text messages, photographs, data sets and video, 
enable geographically independent call access, transfer, and backup 
among and between PSAPs and other authorized emergency organizations, 
and support an ``interoperable internetwork'' of all emergency 
organizations.
    Many PSAPs do not have the resources to make the upgrades necessary 
to request E-911 service. Some PSAPs are able to fund upgrades from 
their existing budgets, but other PSAPs must rely on funds collected by 
the State to maintain operation and make capital improvements to 911 
services. While most States collect some type of wireless fee or 
surcharge on consumers' wireless telephone bills to help fund PSAP 
operations and upgrades, not all State laws ensure that such surcharges 
are dedicated to their intended use. In fact, some States have used E-
911 surcharges to satisfy other State obligations that may be 
marginally related to public safety, even though PSAPs remain unable to 
receive E-911 service. See, e.g., Government Accountability Office 
(GAO), States' Collection and Use of Funds for Wireless Enhanced 911 
Services, GAO-

[[Page 26967]]

06-338 (March 2006); see also GAO, Survey on State Wireless E911 Funds, 
GAO-06-400sp (2006).
    Recognizing the need for dedicated funding of E-911 services, the 
Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) 
Act of 2004 (Pub. L. 108-494, codified at 47 U.S.C. 942) was enacted 
``to improve, enhance, and promote the Nation's homeland security, 
public safety, and citizen activated emergency response capabilities 
through the use of enhanced 911 services, to further upgrade Public 
Safety Answering Point capabilities and related functions in receiving 
E-911 calls, and to support the construction and operation of a 
ubiquitous and reliable citizen activated system[.]'' This grant 
program was established to provide $43.5 million (less administrative 
costs) for the implementation and operation of Phase II E-911 services 
and for migration to an IP-enabled emergency network. 47 U.S.C. 
942(b)(1).

II. Statutory Requirements

    The ENHANCE 911 Act directs NHTSA and NTIA to issue joint 
implementing regulations prescribing the criteria for selection for 
grants. 47 U.S.C. 942(b)(4). The Act establishes certain minimum 
requirements for grant applications. An applicant must provide at least 
50 percent of the cost of a project from non-Federal sources. 47 U.S.C. 
942(b)(2). In addition, an applicant must certify that it has 
coordinated its application with the public safety answering points 
located within the jurisdiction; that the State has designated a single 
officer or governmental body to serve as the coordinator of 
implementation of E-911 services; that it has established a plan for 
the coordination and implementation of E-911 services; and that it has 
integrated telecommunications services involved in the implementation 
and delivery of Phase II E-911 services. 47 U.S.C. 942(b)(3).
    The Act also requires applicants to certify that no portion of any 
designated E-911 charges imposed by the State or other taxing 
jurisdiction within the State is being or will be obligated or expended 
for any purpose other than E-911 purposes during the period at least 
180 days immediately preceding the date of the application and 
continuing throughout the time grant funds are available to the 
applicant. 47 U.S.C. 942(c)(2). Applicants must agree to return any 
grant awarded if the State or other taxing jurisdiction diverts 
designated E-911 charges during the time period that grant funds are 
available. 47 U.S.C. 942(c)(3). Finally, applicants that knowingly 
provide false information on the certification are not eligible to 
receive grant funds and must return any grant funds awarded. 47 U.S.C. 
942(c)(4).

III. Notice of Proposed Rulemaking

    The agencies published a notice of proposed rulemaking (NPRM) to 
prescribe the criteria for grants under the E-911 grant program. See E-
911 Grant Program, 73 FR 57567 (Oct. 3, 2008). The NPRM outlined the 
application and administrative requirements that States must meet to 
receive grant awards. In addition, the NPRM identified the minimum 
grant amount for each State qualifying for a grant award.
    The NPRM proposed to permit only the 50 United States, the District 
of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana 
Islands, and the U.S. Virgin Islands to apply for grant funds on behalf 
of all eligible entities located within their borders. The NPRM also 
outlined the application requirements for States to apply for a grant 
under this program. Specifically, the NPRM identified the following 
components as the application requirements: A State 911 plan, a project 
budget, a supplemental project budget (if applicable), designation of 
an E-911 Coordinator, and certification of compliance with statutory 
and programmatic requirements.
    The NPRM provided that the State 911 Plan must describe the 
projects and activities proposed to be funded with E-911 grant funds as 
well as establish performance metrics and timelines for grant project 
implementation, subject to E-911 Implementation Coordination Office 
(ICO) review and the agencies' approval. The NPRM also provided that 
the State 911 Plan must certify (1) coordination with local 
governments, tribal organizations, and PSAPs within the State's 
jurisdiction; (2) priority given to communities without 911 capability 
or an explanation of why priority would not be practicable; (3) 
involvement of integrated telecommunications service providers in the 
implementation and delivery of Phase II E-911 services or for migration 
to an IP-enabled emergency network; and (4) use of technologies to 
achieve compliance with Phase II E-911 services or for migration to an 
IP-enabled emergency network. In addition, the NPRM provided that 
States must demonstrate in the State 911 Plan that at least 90 percent 
of the grant funds would be used for the direct benefit of PSAPs. 
Finally, the NPRM specified that, in the State 911 Plan, the State must 
detail how it intended to employ technology to achieve compliance with 
the FCC description of Phase II E-911 services and/or how it intended 
to migrate to an IP-enabled emergency network.
    The agencies proposed that States submit a project budget for the 
projects or activities proposed to be funded by the grant funds, 
including the identification of non-Federal sources that would fund 50 
percent of the cost, if applicable. See 48 U.S.C. 1469a(d) (waiver for 
non-Federal matching funds under $200,000, including in-kind 
contributions, for the Territorial governments in American Samoa, Guam, 
the Northern Mariana Islands, and the U.S. Virgin Islands). The 
agencies specified that the project budget must account for the initial 
distribution of grant funds, as identified for each State in an 
appendix to the NPRM. The initial distribution of grant funds to each 
State, if all States applied and qualified for a grant, was based on 
the agencies' proposed formula, as follows: 50 percent in the ratio 
which the population of each State bears to the total population of all 
the States, as shown by the latest available Federal census, and 50 
percent in the ratio which the public road mileage in each State bears 
to the total public road mileage in all States, as shown by the latest 
available Federal Highway Administration data. However, each State 
would receive a minimum award of $500,000, except that the four 
territories--American Samoa, Guam, the Northern Mariana Islands, and 
the Virgin Islands--would each receive a minimum of $250,000.
    In anticipation of some States not applying or qualifying for grant 
funds, the agencies proposed distributing unallocated funds to the pool 
of qualifying States in accordance with the same formula used for the 
initial distribution. In order to obligate any initially unallocated 
balances before the end of fiscal year 2009, the NPRM proposed that 
States interested in additional grant funds include a supplemental 
project budget identifying proposed projects or activities with their 
application. The supplemental project budget would identify the maximum 
amount that the State was able to match from non-Federal sources and 
include details of the proposed projects or activities to be funded.
    The NPRM identified the eligible uses for the E-911 grant funds--
implementation and operation of Phase II E-911 services or migration to 
an IP-enabled emergency network. Specifically, the agencies proposed 
that grant funds and matching funds be used

[[Page 26968]]

either for the acquisition and deployment of hardware and software that 
enables compliance with Phase II E-911 services or that enables 
migration to an IP-enabled emergency network, or for training in the 
use of such hardware and software.
    The NPRM also proposed that, as part of the application, the State 
identify a single officer or governmental body designated by the 
Governor to serve as the coordinator of implementation of E-911 
services and the certifying official on the certifications. The 
agencies proposed that the E-911 Coordinator would be responsible for 
certifying that the State coordinated its application with local 
governments, tribal organizations and PSAPs; established a plan for the 
coordination and implementation of E-911 services; would ensure that at 
least 90 percent of the grant funds were used for the direct benefit of 
PSAPs; had integrated telecommunications services involved in the 
implementation and delivery of Phase II E-911 services; and would 
provide at least 50 percent of the cost of each project funded under 
this grant from non-Federal sources (if applicable).
    The proposal also provided that the E-911 Coordinator must certify 
that no designated E-911 charges imposed by the State or taxing 
jurisdiction within the State would be diverted for other purposes from 
the time period 180 days preceding the date of the application and 
continuing throughout the time period during which grant funds were 
available. The proposal further required States to agree to return all 
grant funds if any designated E-911 charges imposed by the State or any 
taxing jurisdiction within the State were diverted to other uses.
    Finally, the NPRM identified the financial and administrative 
requirements for the grant program.

IV. Comments

    The agencies received submissions from 13 commenters in response to 
the NPRM. Commenters included the following seven State agencies: the 
California 9-1-1 Emergency Communications Office (CA 911 Office); the 
State of Missouri 9-1-1 Coordinator (MO 911 Coordinator); the Nebraska 
Public Service Commission (NE PSC); the Pennsylvania Emergency 
Management Agency, Bureau of 911 Programs (PA EMA); the Georgia 
Emergency Management Agency (GA EMA); the Texas Commission on State 
Emergency Communications (TX CSEC); and the Washington State Enhanced 
911 Program (WA E911 Office). Additional commenters included four 
associations and consortiums: CSI-911 (CSI-911); the National Emergency 
Number Association/National Association of State 911 Administrators 
(NENA/NASNA); the Alaska Chapter of the National Emergency Number 
Association (AK NENA); and the Colorado Public Utilities Commission 9-
1-1 Task Force (CO 911). Two interested members of the public also 
provided comments.

A. In General

    Some commenters sought clarification of specific aspects of the 
NPRM, while others requested amendments to the application 
requirements. The agencies received comments from NENA/NASNA and the CA 
911 Office in support of the formula-based approach for distributing 
grant funds. The AK NENA requested additional grant distributions for 
States still deploying basic 911 services or lacking Statewide E-911. 
Several commenters requested clarification of the eligible uses of 
grant funds. The agencies address these comments below under the 
appropriate heading.
    The agencies received a few comments concerning the sections on 
non-compliance (Sec.  400.8), financial and administrative requirements 
(Sec.  400.9), and close-out (Sec.  400.10), which were generally 
supportive. See, e.g., WA E911 at 4; CA 911 Office at 5-6. 
Consequently, the Final Rule leaves these provisions unchanged. The 
agencies received one supportive comment concerning the proposed 
approval and award procedures (Sec.  400.5). CA 911 Office at 5. The 
agencies have added clarifying language in Sec.  400.5 to highlight the 
importance of the State's response to the ICO's request for additional 
information. In the NPRM, the agencies stated that the ICO, upon review 
of a State's application, may request additional information from the 
State prior to making a recommendation of award in order to clarify 
compliance with the statutory and programmatic requirements. In the 
Final Rule, the agencies have added the following language: ``Failure 
to submit such additional information may preclude the State from 
further consideration for award.'' The agencies believe that this was 
implicit in the proposal, but add language to clarify this point.

B. Definition of IP-Enabled Emergency Network

    The NENA/NASNA thought that the definition of ``IP-enabled 
emergency network'' was ``overly narrow,'' and requested that it be 
expanded to cover the ``larger NG9-1-1 system.'' See NENA/NASNA at 3-4. 
The NENA/NASNA described the system as including ``the software, 
applications, interfaces and databases that traverse, connect and 
enable effective routing over a network.'' According to the NENA/NASNA, 
only a ``system,'' of which a ``network'' is a key component, would 
enable ``the receipt and response to all citizen-activated emergency 
communications and improve information sharing among all emergency 
response entities'' as intended by the Act. The agencies did not intend 
to define IP-enabled emergency network narrowly, and thus, adopted most 
of the language suggested by NENA/NASNA. Accordingly, the definition of 
``IP-enabled emergency network'' or ``IP-enabled emergency system'' in 
Sec.  400.2 of the Final Rule now reads as follows: ``an emergency 
communications network or system based on a secured infrastructure that 
allows secured transmission of information, using Internet Protocol, 
among users of the network or system.''

C. States Applying on Behalf of All Eligible Entities

    NENA/NASNA and the CA 911 Office generally supported the proposal 
to limit E-911 grant applications to States, on behalf of all eligible 
entities within the jurisdiction. The CA 911 Office, however, asked 
whether States must account for distribution of grant funds to each 
eligible entity in the State, warning that such a requirement would 
result in an ``administrative nightmare.'' See CA 911 Office at 1. The 
CA 911 Office suggested that States be allowed ``to apply for grant 
funds in a manner that demonstrates benefit to all eligible entities 
located within their borders.'' As explained in more detail in Section 
IV.D.2, the rule does not require grant funds to be distributed to 
every eligible entity within the State, so long as the ``direct benefit 
of PSAPs'' requirement is met. A State may distribute grant funds 
directly to one or more PSAPs or expend the funds in a manner that 
satisfies the requirement to benefit eligible entities within the State 
(as the CA 911 Office proposes), or it may follow a combination of 
these two approaches. Whatever approach is adopted, the State, as grant 
recipient, is responsible for accounting for the distribution and 
expenditure of all grant funds received under this program, in 
accordance with standard grant administration procedures.
    One anonymous individual recommended that NHTSA collect all 
applications and review and award the funds to ensure that ``all of the 
money will be awarded directly to the individual agencies that need it 
as opposed to bleeding off the dollars to

[[Page 26969]]

admin/handling fees at the state level.'' The commenter states that 
this would ensure that ``national needs are met as opposed to what a 
State believes [are] important.'' While the agencies understand the 
commenter's concerns, the agencies continue to believe that limiting 
the applicant pool to States is necessary to streamline the grant 
process so that timely award is assured before the end of the program 
in fiscal year 2009. As discussed later, the agencies believe that the 
requirement for States to certify that 90 percent of the grant funds 
will be used for the direct benefit of PSAPs strikes the proper balance 
between State concerns and the overarching goals of the ENHANCE 911 Act 
to address the interests of PSAPs. The agencies have made no change to 
the rule in response to this comment.

D. Application: State 911 Plan

    The CA 911 Office recommended that the following two additional 
planning elements be added to ensure project documentation that 
reflects quality control and basic project management principles: 
``provide success parameters for the plan and identify any risks'' and 
``include a deliverable to provide final documentation that shall 
include, as a minimum, the design, testing, monitoring and lessons 
learned for use by other public safety authorities in the country by 
means of public record requests.'' CA 911 Office at 3. The NPRM 
proposed that States provide a plan that details the projects and 
activities proposed to be funded for the implementation and operation 
of Phase II E-911 services or migration to an IP-enabled emergency 
network, establishes metrics and a time table for grant implementation, 
and describes the steps the State has taken to meet statutory and 
programmatic elements of the grant program. See Sec.  400.4(a)(1). In 
addition, the NPRM proposed that States submit annual performance 
reports and quarterly financial reports. See Sec.  400.9(b). The 
agencies believe that these requirements sufficiently address the need 
for project documentation that reflects quality control and basic 
project management principles. Consequently, the agencies have not 
adopted the suggestion for additional planning elements.
    The PA EMA stated that the State 911 Plan should be more consistent 
with the requirements of the Model State 911 Plan (``Model Plan''). PA 
EMA at 2. The Model Plan, which was developed by NASNA as part of a 
cooperative agreement with NHTSA, is intended to be a comprehensive, 
long-term plan to coordinate the planning and implementation of E-911 
services. In light of the relatively limited funding available under 
this grant program, the agencies do not expect States to develop this 
kind of comprehensive, long-term plan in order to apply for a grant. 
Therefore, the agencies decline to adopt the PA EMA's recommendation.
    The agencies received no comments on two components of the State 
911 Plan--priority to communities without 911 capability and employing 
the use of technologies. Consequently, the rule remains unchanged with 
regard to these components of the State 911 Plan.
1. Coordination
    The MO 911 Coordinator commented that Missouri does not have any 
statutory provisions that allow coordination with PSAPs, and suggested 
removing the word ``statutory'' from the requirements. MO 911 
Coordinator at 3. The preamble to the NPRM merely explained that the 
basis for the coordination requirement in the State 911 Plan was a 
statutory provision in the ENHANCE 911 Act. The proposal did not impose 
a requirement for a State to have statutory provisions concerning 
coordination. Moreover, the agencies do not agree with what Missouri 
appears to be implying--that such coordination cannot take place in the 
absence of a State statutory provision authorizing it. In any event, 
the ENHANCE 911 Act specifically requires such coordination. 
Consequently, States must coordinate their application with PSAPs in 
order to qualify for a grant award. The agencies make no change to the 
rule in response to this comment.
    The GA EMA asked whether a 911 advisory committee appointed by the 
Governor, with PSAP directors' representation, would satisfy the 
coordination requirement, and the WA E911 Office suggested that States 
be able to meet the requirement to coordinate with PSAPs if the State 
coordinates with all governmental agencies representing or managing 
PSAPs within the State. GA EMA at 1; WA E911 Office at 5. Because 
States are applying on behalf of all eligible entities within their 
borders, the coordination requirement is intended to ensure that the 
needs of PSAPs are addressed in State 911 Plans. A 911 advisory 
committee would satisfy the coordination requirement, provided it 
included representation of PSAPs among its membership. Similarly, State 
coordination with all governmental agencies that represent or manage 
the PSAPs in the State would satisfy this coordination requirement. No 
change to the rule is necessary.
    The PA EMA and WA E911 Office questioned the proposed requirement 
to coordinate the application with tribal organizations located within 
the State. See PA EMA at 2; WA E911 Office at 5. Both commenters 
asserted that the agencies were extending the coordination requirements 
beyond the proper reach of the ENHANCE 911 Act. NENA/NASNA suggested 
that ``the agencies may wish to consider how [tribal organizations], 
many of whom greatly need funding assistance, can be eligible for grant 
funds despite their separate governing structure that is fully 
severable from the state government.'' NENA/NASNA at 2, n. 6. The 
agencies disagree with these commenters. The ENHANCE 911 Act, as 
amended, directs the agencies to make grants to ``eligible entities,'' 
which specifically include tribal organizations. Short of expanding the 
applicant pool to include the many existing tribal organizations, which 
is administratively impracticable for reasons explained in the preamble 
to the NPRM, the coordination requirement is necessary.
    The WA E911 Office expressed concern that the State might not have 
authority to coordinate with tribal organizations. WA E911 Office at 5. 
States need not have specific statutory authority to coordinate E-911 
related services with tribal organizations. Most States have existing 
relationships with tribal organizations that would readily facilitate 
the coordination necessary to meet the objectives of the E-911 grant 
program. Consequently, the agencies have made no changes to the rule.
2. Direct Benefit of PSAPs
    The agencies received comments from NENA/NASNA, CA 911 Office, GA 
EMA, WA E911 Office, and PA EMA requesting clarification of the meaning 
of ``direct benefit of PSAPs.'' The CA 911 Office, WA E911 Office and 
PA EMA asked whether Statewide activities or projects that benefited 
PSAPs would satisfy the ``direct benefit of PSAPs'' requirement or 
whether the term's meaning was limited to direct distribution to PSAPs. 
See CA 911 Office at 1-2; WA E911 Office at 5-6; PA EMA at 2. This 
proposed requirement is not intended to encourage the continuation of 
the traditional model of investment at the individual PSAP level, as 
the WA E911 Office suggested. Rather, the agencies intend the phrase 
``direct benefit of PSAPs'' to cover both direct distribution to PSAPs 
at the individual PSAP level and Statewide projects in which multiple 
PSAPs would benefit from the investment of E-911 grant funds, as 
articulated by NENA/NASNA. NENA/NASNA at 4. In either case, the State 
must ensure that 90 percent of the grant funds are being used for the 
actual

[[Page 26970]]

implementation and operation of E-911 services or for migration to an 
IP-enabled emergency network. Because E-911 capabilities vary from 
State to State, the agencies believe that States, in coordination with 
the eligible entities within their borders, are best positioned to 
select between direct distribution to PSAPs and Statewide projects 
benefiting multiple PSAPs (or a combination of both approaches) to 
upgrade their E-911 capabilities. As noted by NENA/NASNA, some States 
with many PSAPs not capable of receiving Phase II E-911 information may 
choose to prioritize their grant funds to upgrade these PSAPs while 
other States may use their grant funds for Statewide projects that 
would benefit all PSAPs, such as establishing or enabling access to an 
emergency services IP network. NENA/NASNA at 5. The agencies believe 
that the existing language accommodates both approaches, and that no 
change to the Final Rule is necessary.
    The MO 911 Coordinator requested clarification as to the use of the 
remaining 10 percent of the grant funds, after the 90 percent used for 
the direct benefit of PSAPs. MO 911 Coordinator at 2. The agencies 
intend that up to 10 percent of the grant funds be available to the 
State to manage the projects and activities approved under the E-911 
grant program. To clarify this point, the agencies have added language 
in Sec.  400.4(a)(1)(ii) stating that not more than 10 percent of the 
grant funds may be used for the State's administrative expenses.
    The TX CSEC requested that the following language be added to the 
State's certification that 90 percent of the grant funds will be used 
for the direct benefit of PSAPs: ``[t]his requirement is presumed to 
have been met provided that all PSAPs in the State, through their 
respective 9-1-1 Governing Authorities as defined in NENA Master 
Glossary of 9-1-1 Terminology, have been involved in the development of 
the State 911 Plan. For purposes of this requirement, the term 
``direct-benefit'' shall be liberally construed.'' TX CSEC at 2. As 
discussed above, the agencies intended the language ``direct benefit of 
PSAPs'' to require States to target the grant funds to meet the 
specific needs of PSAPs. The agencies did so to give proper weight to 
the broad eligibility criteria in the ENHANCE 911 Act. The agencies do 
not agree with the TX CSEC that the goal of directly benefiting PSAPs 
would be achieved merely by virtue of PSAP participation in the 
development of the State 911 plan, and the agencies decline to adopt 
the comment.
3. Involvement of Integrated Telecommunications Services
    The agencies received two comments regarding the involvement of 
integrated telecommunications services. The PA EMA requested that a 
definition of this term be added to the rule, and the GA EMA asked how 
a State must involve integrated telecommunications services in the 
implementation and delivery of Phase II E-911 services. PA EMA at 1; GA 
EMA at 1. The Act requires applicants to certify that they have 
integrated telecommunications services involved in the implementation 
and delivery of E-911 services, but did not provide a definition for 
the term ``integrated telecommunications services.'' In response to 
these comments, the agencies have added a definition in Sec.  400.2. 
The term ``integrated telecommunications services,'' also referred to 
as ``integrated telecommunications,'' as now defined in the Final Rule 
refers to ``those entities engaged in the provision of multiple 
services, such as voice, data, image, graphics, and video services, 
which make common use of all or part of the same transmission 
facilities, switches, signaling, or control devices.'' Integrated 
telecommunications services play a vital role in enabling PSAPs to 
upgrade their capability to receive E-911 services. To effectuate the 
statutory requirement, States should consult with integrated 
telecommunications services in the planning phase of implementing E-911 
services.

E. Application: Project Budget and Supplemental Project Budget

    The CA 911 Office described its understanding of the supplemental 
project budget as follows: ``[t]his is a proposed contingency plan in 
the event a state did not qualify for an E-911 Grant because they could 
not meet the certification, but they may be able to qualify for use of 
any remaining Grant funds.'' CA 911 Office at 3. That is a 
misunderstanding of the purpose of the supplemental project budget. A 
State that does not qualify for the initial distribution because it 
cannot make the required certifications will not be eligible for any E-
911 grant funds. In the event funds remain because some States do not 
apply or fail to qualify, only a State that qualifies for an initial 
distribution will be eligible for a supplemental distribution. However, 
the State must submit a supplemental project budget as well as a 
project budget as part of its application in order to be eligible for 
the supplemental distribution. The agencies have added language in 
Sec.  400.4(a)(3) to clarify this point.

F. Application: Match Requirement

    The agencies received a number of comments regarding the 50 percent 
match requirement. The MO 911 Coordinator and the PA EMA asked whether 
the match requirement could be met with local as well as State funds. 
MO 911 Coordinator at 3; PA EMA at 3. The proposal specified only that 
matching funds must come from non-Federal sources meeting the 
requirements of 49 CFR 18.24 (the Department of Transportation's 
codification of the Common Grant Rule)--it did not restrict the match 
only to State funds. States may use both State and local funds to 
provide the match as long as these funds meet the requirements of 49 
CFR 18.24. The agencies determined that no change to the rule is 
necessary.
    The MO 911 Coordinator asked for guidance on what is considered a 
non-Federal source, and the GA EMA asked if funds from a State grant 
program funded with 911 fees could be used to meet the match 
requirement. See MO 911 Coordinator at 3; GA EMA at 1. The MO 911 
Coordinator also asked whether the match requires a separate budget 
line item of funds specifically set aside for the grant match or 
whether existing operating budgets could be used to match. MO 911 
Coordinator at 3-4. The agencies do not require a specific line item 
set aside for the grant match. The agencies refer both commenters to 49 
CFR 18.24 for guidance on what is allowable to meet the match 
requirement. The TX CSEC requested that ``consistent with 49 CFR 
18.24,'' be added to the certification regarding the matching funds. TX 
CSEC at 4. The agencies agree with this comment, and have added that 
similar language to the certification.
    The NE PSC asked that States be allowed flexibility to match funds 
based on the overall cost of implementation rather than for specific 
projects. See NE PSC at 4. The NE PSC explained that NE's wireless fund 
could not be used for expenses that were not directly related to 
wireless service, such as rural addressing. As explained in Section 
IV.J., rural addressing, purchase of street signs and development of 
MSAG are not eligible uses for E-911 grant funds. For this reason, 
costs associated with rural addressing would not meet the match 
requirement for the E-911 grant funds. Although the agencies are aware 
that local counties need funds for rural addressing, it is not clear 
from NE PSC's comments how matching based on the overall cost of full 
implementation of E-

[[Page 26971]]

911 service rather than on a project basis would help local counties 
receive the financial assistance needed for those expenses that could 
not be funded by wireless surcharges.
    The PA EMA asked whether the State could meet the matching 
requirement ``by leveraging funds already encumbered for wireless Phase 
II E9-1-1 or NG9-1-1 studies and/or planning.'' PA EMA at 3. According 
to the PA EMA, it would be difficult to find new funds to meet the 
match requirement because the timeline of the application does not line 
up with State or local budget cycles. While the agencies recognize the 
potential difficulties described by these commenters, the Act requires 
applicants to meet the match on ``a project'' basis. See 47 U.S.C. 
942(b)(2). To allow States to match based on overall cost of 
implementation would be contrary to the statutory intent. The Act also 
requires applicants to have an already established plan for the 
coordination and implementation of E-911 services in order to apply for 
the grant program. See 47 U.S.C. 942(b)(4)(A)(iii). As explained in 
Section IV.J., grant funds may not be used to develop a plan for the 
implementation of E-911 services. The agencies believe that allowing 
the use of leveraged funds intended for developing a plan for matching 
purposes also would be contrary to the statutory intent. The agencies 
decline to amend the rule in response to these comments.

G. Application: Designation of E-911 Coordinator

    The agencies received numerous comments regarding the proposed 
requirement that the Governor of the State designate an E-911 
Coordinator to implement E-911 services and to sign the certifications. 
The CO 911 expressed concern that requiring a Governor-appointed E-911 
Coordinator would disqualify States without a Statewide coordinator. CO 
911 at 2. Three commenters asserted that some States by law or rule 
already have designated an E-911 Coordinator or an equivalent entity 
with the authority to manage or coordinate emergency communications, 
and that requiring the Governor to make another designation in such 
cases was not necessary and might have a negative impact on established 
State 911 programs. NENA/NASNA at 5; TX CSEC at 1-2; WA E911 Office at 
6. In contrast, the AK NENA requested that the Governor be allowed to 
designate an entity other than the statutory 911 coordinator to apply 
on behalf of the State. AK NENA at 3.
    In enacting the ENHANCE 911 Act, Congress stated that one of the 
purposes of the grant program was ``to coordinate 911 services and E-
911 services, at the Federal, State, and local levels.'' Section 103, 
Public Law 108-494. Coordination of 911 services is traditionally 
managed by the executive branch of the State government. The agencies 
believe that the Governor of the State is best positioned to identify 
which agency or office is able to serve as the designated E-911 
Coordinator. In light of the express statutory requirement that 
applicants must certify that the State has a designated E-911 
Coordinator (47 U.S.C. 942(b)(4)(A)(ii) and (b)(4)(B)), the rule 
continues to require States to designate E-911 Coordinators. The 
agencies recognize that the ENHANCE 911 Act does not require the 
coordinator to have direct legal authority to implement E-911 services 
or manage emergency communications operations in order to meet the 
requirements of the proposal. See 47 U.S.C. 942(b)(4)(A)(ii). Because 
the rule does not require the E-911 Coordinator to have such direct 
legal authority, the agencies do not believe that adding language to 
that effect is necessary, as suggested by the TX CSEC. TX CSEC at 2.
    The agencies did not intend to circumvent existing State 
authorities for 911 services in proposing that the Governor designate 
an E-911 Coordinator. In many States, the State 911 offices are the 
point of contact for E-911 services. The agencies believe that State 
911 offices are well equipped to coordinate the implementation and 
operation of Phase II E-911 services and the migration to an IP-enabled 
emergency network. Accordingly, the agencies have made changes in the 
Final Rule to accommodate the commenters' concerns. If the State has 
established by law or regulation an office or coordinator with the 
authority to manage E-911 services, that office or coordinator must be 
identified as the designated E-911 Coordinator. However, if the State 
does not have such an office or coordinator established by law or 
regulation, the Governor must designate a single officer or 
governmental body to serve as the E-911 Coordinator. The agencies 
believe that giving States these two options for designating an E-911 
Coordinator is the most reasonable and efficient approach to address 
these concerns. The agencies have made changes to the rule and 
corresponding changes to the certifications in Appendix B and Appendix 
C in response to these comments.
    The AK NENA claims that Alaska's 911 Coordinator would be ``unable 
to develop a capable ENHANCE 911 Grant application within the currently 
stated timelines,'' and asks that the Governor be allowed to designate 
another coordinator. AK NENA at 3. The agencies decline to adopt this 
recommendation since allowing the Governor to appoint another officer 
or entity for purposes of the E-911 grant program where one already 
exists could lead to confusion and blurring of responsibilities, 
resulting in a negative impact on established 911 programs within the 
State.
    Two commenters questioned the need for the Governor to make any 
designation when States already have designated a single point of 
contact for 911 under FCC procedures. PA EMA at 3-4; MO 911 Coordinator 
at 4-5. These commenters suggested that the agencies use this single 
point of contact instead. The agencies decline to adopt these 
suggestions, since there is an independent obligation to ensure the 
designation of an E-911 Coordinator for the specific purposes of this 
program. However, nothing precludes a State from using the same single 
officer or governmental body identified to the FCC to satisfy the 
designation requirement for the E-911 grant program.
    One anonymous commenter and the WA E911 Office requested that the 
agencies publish a list of the E-911 Coordinators. WA E911 Office at 6. 
These comments are outside the scope of the rulemaking. This 
information will not be available until after all applications have 
been reviewed. At that time, the agencies will consider publishing a 
list of the E-911 Coordinators for the States that are awarded E-911 
grants.

H. Application: Certification Concerning Diversion of Funds

    The agencies received many comments regarding the requirement for 
certification that neither the State nor any taxing jurisdiction in the 
State has diverted designated E-911 charges. The ENHANCE 911 Act 
mandates that ``[e]ach applicant * * * shall certify * * * that no 
portion of any designated E-911 charges imposed by the State or other 
taxing jurisdiction within which the applicant is located are being 
obligated or expended for any purpose other than the purposes for which 
such charges are designated or presented from 180 days preceding the 
date of the application and continuing through the period in which 
grant funds are available * * *.'' 47 U.S.C. 942(c). In the NPRM, the 
agencies proposed certification language that is nearly identical to 
this statutory language.
    The WA E911 Office claims that this certification process 
discourages

[[Page 26972]]

applications, especially if States must return all grant funds if false 
or inaccurate information is provided in the certification. See WA E911 
Office at 3-4. The WA E911 Office also commented that if the State does 
not apply because it cannot make the certifications regarding the 
diversion of funds, then local taxing jurisdictions and tribal 
organizations will not be able to apply and receive E-911 grant funds. 
Similarly, CSI-911 commented that if the Governor of the State has 
diverted designated E-911 charges, then local 911 systems that are 
using such designated charges for appropriate purposes will be unfairly 
disqualified from receiving E-911 grant funds. CSI-911 at 1. Several 
commenters thought that the State should only certify to the State's 
use of designated E-911 charges and should not be required to certify 
to local taxing jurisdictions' use of designated E-911 charges. See, 
e.g., WA E911 Office at 3-4; TX CSEC at 2; NENA/NASNA at 7; AK NENA at 
3. Some of these commenters suggested having each local taxing 
jurisdiction certify individually to its own use of designated E-911 
charges. The WA E911 Office suggested modifying the language to add 
``to the best of my knowledge'' and allowing the State to provide a 
description of the measures the State has taken to ensure that local 
taxing jurisdictions are not diverting funds. WA E911 Office at 2.
    Although the agencies understand these commenters' concerns, the 
statutory language and certification requirement are clear and provide 
no discretion. If the State, as applicant, is unable to certify that it 
is not diverting designated E-911 charges, then neither the State nor 
any eligible entity located in the State may receive E-911 grant funds. 
The Act requires ``each applicant'' to certify that the State is not 
diverting any designated E-911 charges imposed by the State for any 
purpose other than the purposes for which such charges are designated 
or presented. 47 U.S.C. 942(c)(2) (emphasis added). This statutory 
certification is an affirmative requirement, and the agencies decline 
to make any of the changes recommended by the commenters regarding a 
State's diversion of E-911 funds.
    The agencies, however, recognize the difficulty States may have in 
certifying that no taxing jurisdictions in the State are diverting E-
911 charges and believe the Act provides discretion in one aspect. The 
MO 911 Coordinator and CSI-911 were concerned that a single taxing 
jurisdiction that independently diverts designated E-911 charges could 
preclude the entire State from receiving grant funds. See MO 911 
Coordinator at 1; CSI-911 at 1. After careful consideration, the 
agencies have decided to amend the rule to allow States to qualify for 
E-911 grant funds even if a taxing jurisdiction is diverting designated 
E-911 charges, provided the State meets the following conditions: the 
State, itself, is not diverting and will not divert designated E-911 
charges during the relevant time period and the State does not 
distribute E-911 grant funds to entities that are located in taxing 
jurisdictions where designated E-911 charges are being diverted during 
the relevant time period. For example, if a PSAP is located in a taxing 
jurisdiction where designated E-911 charges are being diverted for 
other purposes, the State may not distribute E-911 grant funds to that 
PSAP. However, the State may distribute grant funds to PSAPs in other 
taxing jurisdictions where designated E-911 charges are not being 
diverted, but must ensure that these taxing jurisdictions that receive 
E-911 grant funds do not divert designated E-911 charges while grant 
funds remain available. In addition, the State may use E-911 grant 
funds for a Statewide project or activity even though it may 
incidentally benefit PSAPs in a diverting jurisdiction as well as PSAPs 
in compliant jurisdictions. In any case, the State must certify that if 
a taxing jurisdiction that directly receives grant funds does divert E-
911 charges, the State will ensure that those grant funds are returned 
to the government. The agencies have amended the rule and certification 
requirements to provide this flexibility. The amendments make no change 
to the requirement that the State certify that during the relevant time 
period, it has not diverted and will not divert designated E-911 
charges imposed by the State for any other purpose, and that it will 
return all E-911 grant funds if the State diverts designated E-911 
charges for any other purpose.
    The NENA/NASNA commented that States that divert 911 fees after 
July 23, 2008 would not be in compliance with the NET 911 Act and asks 
that these States be ineligible for E-911 grant funds. NENA/NASNA at 7-
8. The requirements of the NET 911 Act are separate from and unrelated 
to the requirements of the ENHANCE 911 Act. There is no statutory 
language in the NET 911 Act that would amend the explicit statutory 
requirement in the ENHANCE 911 Act that applicants must certify that 
during the 180 days before the date of the application and continuing 
through the time period that grant funds are available, the State and 
taxing jurisdictions did not divert designated E-911 charges for any 
other purpose. Consequently, the agencies decline to change the Final 
Rule in response to this comment.

I. Distribution of Grant Funds: Formula

    The approach used in this formula is similar to formulae utilized 
by the Department of Transportation programs, including the Federal 
Transit Administration non-urbanized area grant formula and the 
Federal-Aid Highway Act of 1944 grant formula. Both programs utilize 
road infrastructure miles as a component of the formula for grant 
distribution. In this case, the road mileage serves as a proxy for the 
``electronic information highway'' since many telecommunication and 
wireless carriers develop their systems along these routes. In the 
arena of wireless E-911, Phase II compliance would significantly 
improve emergency response along the highway system. The mileage aspect 
of this formula also serves as weight for coverage of geographic areas, 
including rural jurisdictions. The population aspects of the formula 
provide a balance to ensure that the funds would go to those areas in 
which the E-911 system would be improved to help as many Americans as 
possible. The agencies believe the result was an equitable distribution 
of the limited funds. The minimum was set based on the agencies' 
understanding that the cost of bringing at least one PSAP into Phase II 
compliance would be approximately $200,000-$250,000.
    The comments about the proposed formula for distribution of E-911 
grant funds were largely positive. However, one commenter, the AK NENA, 
requested that additional grant allocations be available for Alaska and 
other States that are still deploying basic 911 services as well as 
those lacking Statewide E-911 and wireless 911 capabilities. See AK 
NENA at 3. The AK NENA notes that States that have already achieved 
Statewide deployment of E-911 and wireless 911 capabilities have access 
to funding to support the deployment of Statewide emergency 
communications. Although the agencies recognize that States have 
varying levels of deployment, providing additional grant funds to those 
States that have not established funding to support the deployment of 
E-911 services unduly penalizes States that have taken steps to keep 
pace with advancing technologies. While the agencies also recognize the 
commenter's concerns about the greater needs of some communities, these 
needs are appropriately addressed through State planning, and that the 
formula distribution remains an equitable

[[Page 26973]]

approach. As a result, the agencies made no change to the formula.

J. Eligible Use of Funds

    The agencies received numerous comments requesting clarification of 
the eligible uses of grant funds. In the NPRM, the agencies specified 
that grant funds could be used for the acquisition and deployment of 
hardware and software that enables compliance with Phase II E-911 
services or that enables migration to an IP-enabled emergency network, 
or for training in the use of such hardware and software. The CA 911 
Office asked whether grant funds could be used for all three 
activities. CA 911 Office at 5. The agencies intend that grant funds 
may be used for any or all of the three activities and have amended the 
rule to clarify this point.
    Several commenters asked whether grant funds could be used to pay 
consultants. See, e.g., NENA/NASNA at 8-9; MO 911 Coordinator at 5. In 
47 CFR 400.9(a), the agencies identified the requirements of 49 CFR 
Part 18, including the cost principles referenced in 49 CFR 18.22, as 
applicable to the grants awarded under this program. In accordance with 
those cost principles, consultant costs are allowable provided that 
certain conditions are met. Commenters are directed to the applicable 
cost principles for detail. No change to the Final Rule is necessary in 
response to these comments.
    Several commenters asked whether Statewide projects are eligible 
for funding under the E-911 grant program. See, e.g., CA 911 Office at 
2; WA E911 Office at 5-6; PA EMA at 2. Statewide E-911 projects are 
eligible, provided the State complies with the requirement that 90 
percent of the funds be expended for the direct benefit of PSAPs, as 
discussed in Section IV.D.2. Although the agencies believe that States 
are in the best position to make specific deployment decisions, States 
are encouraged to consider those that would benefit the largest number 
of PSAPs when selecting Statewide projects. Some commenters 
specifically asked whether a Statewide project, such as establishing an 
emergency services IP network or ESInet, would be an eligible use. 
NENA/NASNA at 5; MO 911 Coordinator at 2. According to the NENA, 
ESInets ``are engineered, managed networks, and are intended to be 
multi-purpose, supporting extended Public Safety communications 
services, in addition to 9-1-1. ESInets use broadband, packet switched 
technology capable of carrying voice plus large amounts of varying 
types of data using Internet Protocols and standards.'' See NENA, ``A 
Policy Maker Blueprint for Transitioning to the Next Generation 9-1-1 
System'' (September 2008). Based on this description, the agencies 
believe that establishing an ESInet would help enable PSAPs to migrate 
to an IP-enabled emergency network, and therefore, would be an eligible 
use.
    The PA EMA requested a modification to allow grant applications to 
include a ``plan to plan'' and to allow grant funds to be used for the 
development of a more thorough State 911 plan. PA EMA at 4. The PA EMA 
noted that 60 days were insufficient to develop such a Statewide 911 
plan in the manner envisioned by the NASNA Model State 9-1-1 Plan, the 
Act or the NPRM. As explained in Section IV.D. above, the State 911 
Plan required under this grant program is not the comprehensive plan 
patterned after the Model Plan. The agencies believe that 60 days is 
adequate to establish the significantly less detailed coordination plan 
anticipated by the ENHANCE 911 Act. Moreover, the Act requires an 
applicant to certify that it has already established a plan for the 
implementation and coordination of E-911 services as a condition to 
apply for an E-911 grant. 47 U.S.C. 942(b)(3)(A)(iii). Allowing the E-
911 grant funds to be used for plan development would be inconsistent 
with this statutory prerequisite. Consequently, the agencies decline to 
amend the rule to allow applicants to include a ``plan to plan'' and to 
use grant funds to develop a plan.
    The NE PSC requested that eligible uses be expanded to include the 
costs incurred for rural addressing, purchase of street signs and the 
development of a master street address guide. NE PSC at 2. The agencies 
believe that such uses are only marginally related to the 
implementation and operation of E-911 services, and do not meet the 
purposes of the grant program. Consequently, the agencies decline to 
adopt this recommendation.

V. Statutory Basis for This Action

    The Final Rule implements the grant program created by section 104 
of the ENHANCE 911 Act of 2004, as amended (Pub. L. 108-494, codified 
at 47 U.S.C. 942), which requires the Administrator and the Assistant 
Secretary to issue joint implementing regulations prescribing the 
criteria for grant awards. Section 3011 of the Deficit Reduction Act of 
2005 (Pub. L. 109-171, as amended by section 2301 of Pub. L. 110-53 and 
section 539 of Pub. L. 110-161) authorized funding for the ENHANCE 911 
Act.

VI. Regulatory Analyses and Notices

A. Executive Order 12866 and Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review,'' provides 
for making determinations whether a regulatory action is 
``significant'' and therefore subject to OMB review and to the 
requirements of the Executive Order. 58 FR 51735, Oct. 4, 1993. The 
Order defines a ``significant regulatory action'' as one that is likely 
to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

This rule was not reviewed by the Office of Management and Budget under 
Executive Order 12866. The rule is not considered to be significant 
within the meaning of Executive Order 12866 or the agencies' regulatory 
policies and procedures.
    The rule does not affect amounts over the significance threshold of 
$100 million each year. The rule sets forth application procedures and 
showings to be made to be eligible for a grant. The funds to be 
distributed under the rule total $43.5 million, well below the annual 
threshold of $100 million. The rule does not adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or Tribal governments or communities. The rule does not create 
an inconsistency or interfere with any actions taken or planned by 
other agencies. The rule does not materially alter the budgetary impact 
of entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof. Finally, the rule does not raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    In consideration of the foregoing, the agencies have determined 
that this rule is not significant. The impacts of the

[[Page 26974]]

rule are minimal and a full regulatory evaluation is not required.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, whenever an agency 
publishes a notice of rulemaking for any proposed or Final Rule, it 
must prepare and make available for public comment a regulatory 
flexibility analysis that describes the effect of the rule on small 
entities (i.e., small businesses, small organizations, and small 
governmental jurisdictions). 5 U.S.C. 601 et seq. The Small Business 
Administration's regulations at 13 CFR part 121 define a small 
business, in part, as a business entity ``which operates primarily 
within the United States.'' 13 CFR 121.105(a). No regulatory 
flexibility analysis is required if the head of an agency certifies the 
rulemaking action would not have a significant economic impact on a 
substantial number of small entities. The Small Business Regulatory 
Enforcement Fairness Act of 1996 amended the Regulatory Flexibility Act 
to require Federal agencies to provide a statement of the factual basis 
for certifying that an action would not have a significant economic 
impact on a substantial number of small entities.
    NHTSA and NTIA have considered the effects of this rule under the 
Regulatory Flexibility Act. States are the recipients of funds awarded 
under the E-911 grant program and they are not considered to be small 
entities under the Regulatory Flexibility Act. Therefore, the agencies 
certify that this rule would not have a significant economic impact on 
a substantial number of small entities.

C. Executive Order 13132 (Federalism)

    Executive Order 13132, ``Federalism,'' requires the agencies to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' 64 FR 43255, August 10, 1999. 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, an agency may not issue a regulation with 
Federalism implications that imposes substantial direct compliance 
costs and that is not required by statute unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by State and local governments or the agency consults with 
State and local governments in the process of developing the proposed 
regulation. An agency also may not issue a regulation with Federalism 
implications that preempts a State law without consulting with State 
and local officials.
    The agencies have analyzed this rule in accordance with the 
principles and criteria set forth in Executive Order 13132, and have 
determined that this rule does not have sufficient federalism 
implications to warrant consultation with State and local officials or 
the preparation of a federalism summary impact statement. Moreover, the 
Final Rule will not preempt any State law or regulation or affect the 
ability of States to discharge traditional State government functions.

D. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988, ``Civil Justice Reform,'' the 
agencies have considered whether this rulemaking would have any 
retroactive effect. 61 FR 4729, Feb. 7, 1996. This rule does not have 
any retroactive effect. This rule meets applicable standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.), a person is not required to respond to a collection of 
information by a Federal agency unless the collection displays a valid 
Office of Management and Budget (OMB) control number. There are 
reporting requirements contained in the Final Rule that are considered 
to be information collection requirements under the Paperwork Reduction 
Act, as that term is defined by OMB in 5 CFR Part 1320. The use of 
Standard Forms 424, 424A, 424B, and SF-LLL have been approved by OMB 
under the respective control numbers 0348-0043, 0348-0044, 0348-0040, 
and 0348-0046. The submission of a State 911 Plan constitutes a new 
information collection under the Paperwork Reduction Act. The estimated 
total annual burden is 10,976 hours. The total estimated number of 
respondents is 56 (50 States, the District of Columbia, Puerto Rico, 
American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin 
Islands).
    Pursuant to the Act, the agencies solicited public comments on the 
proposed collection of information, with a 60-day comment period, in 
the notice of proposed rulemaking published on October 3, 2008 (73 FR 
57567). In a Federal Register Notice published on May 19, 2009, the 
agencies announced that they submitted the information collection 
request to OMB for approval. (73 FR 23465). OMB approval for this 
information collection is pending.

F. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million annually. This rule does not meet the definition of a 
Federal mandate because the resulting annual State expenditures would 
not exceed the $100 million threshold. The program is voluntary and 
States that choose to apply and qualify would receive grant funds.

G. National Environmental Policy Act

    The agencies have reviewed this rule for the purposes of the 
National Environmental Policy Act. The agencies have determined that 
this rule will not have a significant impact on the quality of the 
human environment.

H. Executive Order 13175 (Consultation and Coordination With Indian 
Tribes)

    The agencies have analyzed this rule under Executive Order 13175, 
and have determined that the rule will not have a substantial direct 
effect on one or more Indian tribes, will not impose substantial direct 
compliance costs on Indian tribal governments, and will not preempt 
tribal law. Therefore, a tribal summary impact statement is not 
required.

I. Regulatory Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

J. Privacy Act

    Please note that anyone is able to search the electronic form of 
all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.).

[[Page 26975]]

You may review DOT's complete Privacy Act Statement in the Federal 
Register, 65 FR 19477, Apr. 11, 2000.

K. Congressional Review of Agency Rulemaking

    The agencies have not submitted the Final Rule to the Congress and 
the Government Accountability Office under the Congressional Review of 
Agency Rulemaking Act, 5 U.S.C. 801 et seq. This rule is not a ``major 
rule'' within the meaning of the Act.

List of Subjects in 47 CFR Part 400

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

0
In consideration of the foregoing, the National Highway Traffic Safety 
Administration, Department of Transportation, and the National 
Telecommunications and Information Administration, Department of 
Commerce establish a new Chapter IV consisting of Part 400 in Title 47 
of the Code of Federal Regulations to read as follows:

CHAPTER IV--NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION, 
DEPARTMENT OF COMMERCE, AND NATIONAL HIGHWAY TRAFFIC SAFETY 
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION

PART 400--E-911 GRANT PROGRAM

Sec.
400.1 Purpose.
400.2 Definitions.
400.3 Who may apply.
400.4 Application requirements.
400.5 Approval and award.
400.6 Distribution of grant funds.
400.7 Eligible uses for grant funds.
400.8 Non-compliance.
400.9 Financial and administrative requirements.
400.10 Closeout.
Appendix A to Part 400--Minimum Grant Awards Available to Qualifying 
States
Appendix B to Part 400--Initial Certification for E-911 Grant 
Applicants
Appendix C to Part 400--Annual Certification for E-911 Grant 
Recipients

    Authority: 47 U.S.C. 942.


Sec.  400.1  Purpose.

    This part establishes uniform application, approval, award, 
financial and administrative requirements for the grant program 
authorized under the ``Ensuring Needed Help Arrives Near Callers 
Employing 911 Act of 2004'' (ENHANCE 911 Act), as amended.


Sec.  400.2  Definitions.

    As used in this part--
    Administrator means the Administrator of the National Highway 
Traffic Safety Administration (NHTSA), U.S. Department of 
Transportation.
    Assistant Secretary means the Assistant Secretary for 
Communications and Information, U.S. Department of Commerce, and 
Administrator of the National Telecommunications and Information 
Administration (NTIA).
    Designated E-911 charges mean any taxes, fees, or other charges 
imposed by a State or other taxing jurisdiction that are designated or 
presented as dedicated to deliver or improve E-911 services.
    E-911 Coordinator means a single officer or governmental body of 
the State that is responsible for implementing E-911 services in the 
State.
    E-911 services mean both phase I and phase II enhanced 911 
services, as described in 47 CFR 20.18.
    Eligible entity means a State or local government or tribal 
organization, including public authorities, boards, commissions, and 
similar bodies created by such governmental entities to provide E-911 
services.
    ICO means the National E-911 Implementation Coordination Office 
established under 47 U.S.C. 942 for the administration of the E-911 
grant program, located at the National Highway Traffic Safety 
Administration, US Department of Transportation, 1200 New Jersey 
Avenue, SE., NTI-140, Washington, DC 20590.
    Integrated telecommunications services mean those entities engaged 
in the provision of multiple services, such as voice, data, image, 
graphics, and video services, which make common use of all or part of 
the same transmission facilities, switches, signaling, or control 
devices.
    IP-enabled emergency network or IP-enabled emergency system means 
an emergency communications network or system based on a secured 
infrastructure that allows secured transmission of information, using 
Internet Protocol, among users of the network or system.
    Phase II E-911 services mean phase II enhanced 911 services, as 
described in 47 CFR 20.18.
    PSAP means a public safety answering point, a facility that has 
been designated to receive emergency calls and route them to emergency 
personnel.
    State includes any State of the United States, the District of 
Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana 
Islands, and the U.S. Virgin Islands.


Sec.  400.3  Who may apply.

    In order to apply for a grant under this part, an applicant must be 
a State applying on behalf of all eligible entities within its 
jurisdiction.


Sec.  400.4  Application requirements.

    (a) Contents. A State's application for funds for the E-911 grant 
program must consist of the following components:
    (1) State 911 Plan. A plan that details the projects and activities 
proposed to be funded for the implementation and operation of Phase II 
E-911 services or migration to an IP-enabled emergency network, 
establishes metrics and a time table for grant implementation, and 
describes the steps the State has taken to--
    (i) Coordinate its application with local governments, tribal 
organizations, and PSAPs within the State;
    (ii) Ensure that at least 90 percent of the grant funds will be 
used for the direct benefit of PSAPs and not more than 10 percent of 
the grant funds will be used for the State's administrative expenses 
related to the E-911 grant program;
    (iii) Give priority to communities without 911 capability as of 
August 3, 2007 to establish Phase II coverage by identifying the 
percentage of grant funds designated for those communities or provide 
an explanation why such designation would not be practicable in 
successfully accomplishing the purposes of the grant;
    (iv) Involve integrated telecommunications services in the 
implementation and delivery of Phase II E-911 services or for migration 
to an IP-enabled emergency network; and
    (v) Employ the use of technologies to achieve compliance with Phase 
II E-911 services or for migration to an IP-enabled emergency network.
    (2) Project budget. A project budget for all proposed projects and 
activities to be funded by the grant funds identified for the State in 
Appendix A and matching funds. Specifically, for each project or 
activity, the State must:
    (i) Demonstrate that the project or activity meets the eligible use 
requirement in Sec.  400.7; and
    (ii) Identify the non-Federal sources, which meet the requirements 
of 49 CFR 18.24, that will fund at least 50 percent of the cost; except 
that as provided in 48 U.S.C. 1469a, the requirement for non-Federal 
matching funds (including in-kind contributions) is waived for American 
Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands 
for grant amounts up to $200,000.
    (3) Supplemental project budget. States that meet the qualification 
requirements for the initial distribution of E-911 grant funds may also 
qualify for additional grant funds that may become available. To be 
eligible for any such additional grant funds that may become available 
in accordance with

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Sec.  400.6, a State must submit, with its application, a supplemental 
project budget that identifies the maximum dollar amount the State is 
able to match from non-Federal sources meeting the requirements of 49 
CFR 18.24, and includes projects or activities for those grant and 
matching amounts, up to the total amount in the project budget 
submitted under paragraph (a)(2) of this section. This information must 
be provided to the same level of detail as required under paragraph 
(a)(2) of this section and be consistent with the State 911 Plan 
required under paragraph (a)(1) of this section.
    (4) Designated E-911 Coordinator. The identification of a single 
officer or government body to serve as the E-911 Coordinator of 
implementation of E-911 services and to sign the certifications 
required under this part. If the State has established by law or 
regulation an office or coordinator with the authority to manage E-911 
services, that office or coordinator must be identified as the 
designated E-911 Coordinator and apply for the grant on behalf of the 
State. If the State does not have such an office or coordinator 
established, the Governor of the State must appoint a single officer or 
governmental body to serve as the E-911 Coordinator in order to qualify 
for an E-911 grant. If the designated E-911 Coordinator is a 
governmental body, an official representative of the governmental body 
shall be identified to sign the certifications for the E-911 
Coordinator. The State must notify NHTSA in writing within 30 days of 
any change in appointment of the E-911 Coordinator.
    (5) Certifications. (i) The certification in Appendix B to this 
part, signed by the E-911 Coordinator, certifying that the State has 
complied with the required statutory and programmatic conditions in 
submitting its application. The State must certify that during the time 
period 180 days preceding the application date, the State has not 
diverted any portion of designated E-911 charges imposed by the State 
for any purpose other than the purposes for which such charges are 
designated, that no taxing jurisdiction in the State that will be a 
recipient of E-911 grant funds has diverted any portion of designated 
E-911 charges imposed by the taxing jurisdiction for any purpose other 
than the purposes for which such charges are designated, and that 
neither the State nor any taxing jurisdiction in the State that is a 
recipient of E-911 grant funds will divert designated E-911 charges for 
any purpose other than the purposes for which such charges are 
designated throughout the time period during which grant funds are 
available.
    (ii) Submitted on an annual basis 30 days after the end of each 
fiscal year during which grant funds are available, the certification 
in Appendix C to this part, signed by the E-911 Coordinator, making the 
same certification as required under paragraph (a)(5)(i) of this 
section concerning the diversion of designated E-911 charges.
    (b) Due date. The State must submit the application documents 
identified in this section so that they are received by the ICO no 
later than August 4, 2009. Failure to meet this deadline will preclude 
the State from receiving consideration for an E-911 grant award.


Sec.  400.5  Approval and award.

    (a) The ICO will review each application for compliance with the 
requirements of this part.
    (b) The ICO may request additional information from the State, with 
respect to any of the application submission requirements of Sec.  
400.4, prior to making a recommendation for an award. Failure to submit 
such additional information may preclude the State from further 
consideration for award.
    (c) The Administrator and Assistant Secretary will jointly approve 
and announce, in writing, grant awards to qualifying States no later 
than September 30, 2009.


Sec.  400.6  Distribution of grant funds.

    (a) Initial distribution. Subject to paragraph (b) of this section, 
grant funds for each State that meets the requirements in Sec.  400.4 
will be distributed--
    (1) 50 percent in the ratio which the population of the State bears 
to the total population of all the States, as shown by the latest 
available Federal census; and
    (2) 50 percent in the ratio which the public road mileage in each 
State bears to the total public road mileage in all States, as shown by 
the latest available Federal Highway Administration data.
    (b) Minimum distribution. The distribution to each qualifying State 
under paragraph (a) of this section shall not be less than $500,000, 
except that the distribution to American Samoa, Guam, the Northern 
Mariana Islands, and the U.S. Virgin Islands shall not be less than 
$250,000.
    (c) Supplemental distribution. Grant funds that are not distributed 
under paragraph (a) of this section will be redistributed among 
qualifying States that have met the requirements of Sec.  400.4, 
including the submission of a supplemental project budget as provided 
in Sec.  400.4(a)(3), in accordance with the formula in paragraph (a) 
of this section.


Sec.  400.7  Eligible uses for grant funds.

    Grant funds awarded under this part may be used only for the 
acquisition and deployment of hardware and software that enables the 
implementation and operation of Phase II E-911 services, for the 
acquisition and deployment of hardware and software to enable the 
migration to an IP-enabled emergency network, for the training in the 
use of such hardware and software, or for any combination of these 
uses, provided such uses have been identified in the State 911 Plan.


Sec.  400.8  Non-compliance.

    In accordance with 49 U.S.C. 942(c), where a State provides false 
or inaccurate information in its certification related to the diversion 
of E-911 charges, the State shall be required to return all grant funds 
awarded under this part.


Sec.  400.9  Financial and administrative requirements.

    (a) General. The requirements of 49 CFR part 18, the Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments, including applicable cost principles 
referenced at 49 CFR 18.22, govern the implementation and management of 
grants awarded under this part.
    (b) Reporting requirements.
    (1) Performance reports. Each grant recipient shall submit an 
annual performance report to NHTSA, following the procedures of 49 CFR 
18.40, within 90 days after each fiscal year that grant funds are 
available, except when a final report is required under Sec.  
400.10(b)(2).
    (2) Financial reports. Each grant recipient shall submit quarterly 
financial reports to NHTSA, following the procedures of 49 CFR 18.41, 
within 30 days after each fiscal quarter that grant funds are 
available, except when a final voucher is required under Sec.  
400.10(b)(1).


Sec.  400.10  Closeout.

    (a) Expiration of the right to incur costs. The right to incur 
costs under this part expires on September 30, 2012. The State and its 
subgrantees and contractors may not incur costs for Federal 
reimbursement past the expiration date.
    (b) Final submissions. Within 90 days after the completion of 
projects and activities funded under this part, but in no event later 
than the expiration date identified in paragraph (a) of this section, 
each grant recipient must submit--
    (1) A final voucher for the costs incurred. The final voucher 
constitutes

[[Page 26977]]

the final financial reconciliation for the grant award.
    (2) A final report to NHTSA, following the procedures of 49 CFR 
18.50(b).
    (c) Disposition of unexpended balances. Any funds that remain 
unexpended by the end of fiscal year 2012 shall cease to be available 
to the State and shall be returned to the government.

  Appendix A to Part 400--Minimum Grant Awards Available to Qualifying
                                 States
------------------------------------------------------------------------
                                                          Minimum E-911
                       State name                          grant award
------------------------------------------------------------------------
Alabama................................................      $686,230.25
Alaska.................................................       500,000.00
American Samoa.........................................       250,000.00
Arizona................................................       627,067.26
Arkansas...............................................       594,060.05
California.............................................     2,841,352.77
Colorado...............................................       662,637.98
Connecticut............................................       500,000.00
Delaware...............................................       500,000.00
District of Columbia...................................       500,000.00
Florida................................................     1,579,728.30
Georgia................................................     1,063,089.13
Guam...................................................       250,000.00
Hawaii.................................................       500,000.00
Idaho..................................................       500,000.00
Illinois...............................................     1,343,670.10
Indiana................................................       783,700.36
Iowa...................................................       668,545.47
Kansas.................................................       770,896.23
Kentucky...............................................       584,385.38
Louisiana..............................................       511,974.11
Maine..................................................       500,000.00
Maryland...............................................       500,000.00
Massachusetts..........................................       527,000.57
Michigan...............................................     1,108,704.89
Minnesota..............................................       874,841.32
Mississippi............................................       500,000.00
Missouri...............................................       891,711.03
Montana................................................       500,000.00
Northern Mariana Islands...............................       250,000.00
Nebraska...............................................       508,655.45
Nevada.................................................       500,000.00
New Hampshire..........................................       500,000.00
New Jersey.............................................       666,876.13
New Mexico.............................................       500,000.00
New York...............................................     1,603,343.25
North Carolina.........................................       971,280.91
North Dakota...........................................       500,000.00
Ohio...................................................     1,203,583.60
Oklahoma...............................................       700,339.78
Oregon.................................................       500,000.00
Pennsylvania...........................................     1,242,455.97
Puerto Rico............................................       500,000.00
Rhode Island...........................................       500,000.00
South Carolina.........................................       541,705.79
South Dakota...........................................       500,000.00
Tennessee..............................................       751,822.46
Texas..................................................     2,702,727.44
Utah...................................................       500,000.00
Vermont................................................       500,000.00
Virgin Islands.........................................       250,000.00
Virginia...............................................       758,028.12
Washington.............................................       734,176.40
West Virginia..........................................       500,000.00
Wisconsin..............................................       820,409.48
Wyoming................................................       500,000.00
------------------------------------------------------------------------
    Total Available E-911 Grant Funds..................    41,325,000.00
------------------------------------------------------------------------

BILLING CODE 4910-59-P

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    Issued on: June 2, 2009.
Ronald Medford,
Acting Deputy Administrator, National Highway Traffic Safety 
Administration.
Anna M. Gomez,
Acting Assistant Secretary for Communications and Information.
[FR Doc. E9-13206 Filed 6-4-09; 8:45 am]

BILLING CODE 4910-59-C
