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Federal Register / Vol. 86, No. 156 / Tuesday, August 17, 2021 / Rules and Regulations commingled with any other funds; and 3 obligates or expends the 911 portion of such fees or charges for acceptable purposes and functions as defined in 9.23 under new subpart I. We reasoned that the rules should provide states and taxing jurisdictions the flexibility to apportion the collected funds between 911 related and non-911 related programs, but include safeguards to ensure that such apportionment is not subject to manipulation that would constitute fee diversion.
Decision. We adopt the safe harbor provision as proposed. As we note above, Congress tasked us with designating the acceptability of the obligation and expenditure of 911 fees or charges for purposes of determining whether section 902 consequences will apply. Consistent with that mandate, and to incentivize states and taxing jurisdictions to be transparent about multi-purpose fees, adopting a safe harbor provision offers flexibility to states and taxing jurisdictions to have the 911 portion of such multi-purpose fees be deemed acceptable while not having the non-911 portion be deemed diversion. Some commenters support adoption of the proposed safe harbor, while other commenters object to the creation of the safe harbor provision as regulating non-911 fees outside of the Commissions authority or as burdensome. In establishing the safe harbor, we believe that we are neither regulating non-911 fees nor overstepping the responsibility Congress required of the Commission. Because new paragraphs 3A and B of section 615a1f require the Commission to define acceptable expenditures of 911
fees or charges for purposes of section 902, and because some states and taxing jurisdictions collect 911 fees or charges as part of multi-purpose fees, we conclude that the Commission has the obligation to consider the portions of such fees that are dedicated to 911
services. The safe harbor is a voluntary provision that provides a set of criteria for states and taxing jurisdictions with multi-purpose fees to demonstrate that they are not diverting 911 fees or charges. Accordingly, 9.23d2, which provides that the 911 portion of such fees or charges is segregated and not commingled with any other funds, only applies to states and taxing jurisdictions that opt to use the safe harbor provision to demonstrate that they are not diverting 911 fees.
Arguments that fee segregation exceeds the Commissions authority or is burdensome are obviated by the elective nature of the safe harbor.
We find that the safe harbor will promote visibility into how funds
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ostensibly collected for both 911 and other purposes are apportioned, which furthers Congresss transparency goals and enhances our ability to determine whether 911 funds are being diverted.
Without such visibility, multi-purpose fees could be used to obscure fee diverting practices from Commission inquiry, and potentially could render our rules and annual 911 fee report ineffective.
We also clarify that the safe harbor provision is not intended to preclude the use of fees collected for non-911
purposes from later being used for 911
purposes. BRETSA supports the Commissions proposal in Section 9.23d, but challenges a purported provision that if a fee which is specified to be for a purpose other than 911 is used to support 911, it will thereafter be considered a 911 Fee.
BRETSA misconstrues the safe harbor provision. Nothing in the rules we adopt in this document would prevent a state or taxing jurisdiction from using fees originally collected for other public safety purposes to instead support 911
services if needed, and then later using those same non-911 public safety fees to support other public safety purposes again.
BRETSA also contends that the safe harbor prohibition on comingling of 911
funds with other funds is unnecessarily restrictive. We disagree. Segregation of 911 funds in a separate account will help to ensure that the funds are fully traceable, provide a straightforward framework to avoid 911
fee diversion issues, and promote transparency in the use of 911 fees when a state or taxing jurisdiction collects a fee for both 911 and non-911
purposes. We also clarify that states and taxing jurisdictions are not required to use the safe harbor provision of our rules. Thus, a state or taxing jurisdiction may create an alternative multi-purpose fee mechanism that does not meet the safe harbor requirements. If it does so, however, the burden will be on the state or taxing jurisdiction to demonstrate that it is not diverting 911 funds.
Finally, BRETSA suggests that in section 9.23d1, it should suffice if the 911 funding statute or regulations specify the: i Amount or percentage of such fees or charges which are dedicated to purposes other than 91
1 Services, ii minimum amount or percentage dedicated to 911 services, or iii prioritize use of the fees or charges for 911 Service e.g., permit use of the fees for non-911 purposes after the costs of 911 Service have been met. BRETSAs suggestions i and ii appear consistent with 9.23d1, as long as the state or taxing
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jurisdiction adheres to 9.23d2
requiring that the fees be kept segregated. We do not intend the safe harbor to restrict flexibility of states and taxing jurisdictions to adjust the percentages of a multi-purpose fee that are allocated to 911 and non-911
purposes.
5. Diverter Designations Some commenters raise concerns regarding the sufficiency of the process by which jurisdictions are determined to be engaged in diversion by the Commission, or request additional procedural safeguards before being designated a diverter in the annual fee report. In addition, some commenters urge creation of an appeal process for states identified as diverters, and one commenter requests a process by which a diversion finding can be removed once a state has come into compliance.
We decline to adopt such procedures that are not provided for in either section 902 or the NET 911 Act. As discussed above, Congress directed the Commission to adopt final rules defining the acceptable uses of 911 fees and to rule on petitions for determination for additional uses, in order to discourage fee diversion.20
Section 902 also does not alter the wellestablished data collection and reporting process that the agency has employed to compile its annual reports.
To the contrary, Congress implicitly affirmed the agencys existing reporting processes by requiring that Federal grant recipients participate in the annual data collection.
For similar reasons, we decline to establish a glide path or phase-in period for states and taxing jurisdictions to come into compliance with our rules, as proposed by some commenters.
Section 902 does not provide any mechanism for the Commission to delay the implementation of these rules under the statute. We recognize that commenters are concerned about the potential 911 grant eligibility consequences of being designated a fee diverter based on the rules adopted in this order. The Michigan Chapter of APCO, for example, asserts that a 20 47 U.S.C. 615a1f3A, f5 as amended;
sec. 902c1C. Furthermore, Congress defined diversion under section 902f4 in reference to the final rules that the Commission issues here, stating that diversion is the obligation or expenditure of such fee or charge for a purpose or function other than the purposes and functions designated in the final rules. 47 U.S.C. 615a1 Statutory Notes as amended; sec. 902f4. When the agency reports to Congress as required by 47 U.S.C. 615a1f2 on the status of diversion in states and taxing jurisdictions, it will do so using this definition. See 47 U.S.C. 615a1 Statutory Notes as amended; sec.
902d2.

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