Under the USGSA (7 U.S.C. 71 et seq. ), each official agencies (OA) in the United States is assigned a specific geographic area where it performs all official grain inspection and weighing services for customers within that geographic area (7 U.S.C. 79(f)(2)(A)). This ensures effective and efficient delivery of official services to all customers within the assigned OA's geographic area and enhances the orderly marketing of grain. The U.S. Grain Standards Act (USGSA) also provides that customers may obtain services from other OAs under certain circumstances. The Secretary may allow OAs to cross geographic boundaries to provide services to requesting customers if: (1) The assigned OA is unable to provide necessary services on a timely basis; (2) the customer has not been receiving official inspection services from the assigned OA; (3) the customer requests probe inspection on barge-lot basis; or (4) the assigned OA agrees in writing with the adjacent OA to waive the current geographic restriction at the customer's request (7 U.S.C. 79(f)(2)(B)). These allowances are considered exceptions to the USGSA's standard requirements regarding the use of designated OAs to perform inspection services within specified geographic areas. Exceptions must be approved on a case-by-case basis by the Agricultural Marketing Service's Federal Grain Inspection Service (FGIS) that administers regulations under the USGSA. 1 Regulations in 7 CFR part 800 provide limitations for use of these exceptions.

A notable exception that has been implemented in the past is known as the nonuse of service exception. In that exception, a customer who had not obtained inspection services from the assigned OA for a specified length of time could obtain services from another OA. At times, regulations required customers to have not used their designated OA for at least 90 consecutive days; at other times the regulations specified a 180-day nonuse period before the customer could apply for service from another OA. However, lack of clarity about how FGIS determined whether to grant nonuse of service exceptions fostered confusion and conflicts among involved parties and created a perception of inconsistency regarding the handling of such requests. Congress eliminated the nonuse of service exception from the USGSA in 2015;  2 FGIS subsequently removed that exception from the regulations. 3

Although the nonuse of service exception was eliminated from the USGSA in 2015, Congress reinstated authority to implement a nonuse of service exception through an amendment to the USGSA in the 2018 Farm Bill. 4 FGIS must now consider regulatory options related to the reinstatement of the nonuse of service exception (see 7 U.S.C. 79(f)(2)(B)(ii)).

On April 1, 2020, FGIS published an advanced notice of proposed rulemaking (ANPR) (85 FR 18155) to solicit public comments on how FGIS should amend its criteria for reviewing, approving, and implementing exceptions to USGSA's requirements for geographic boundaries. FGIS received six comments on the ANPR. We have incorporated industry feedback from the ANPR, along with input received during industry meetings, to develop this proposed rule (PR). FGIS is requesting public comment on options for timely service and nonuse of service, as defined within this PR. Particularly, FGIS seeks input from industry participants and OAs who use and provide official services and are familiar with grain inspection services under the USGSA. We welcome the submission of data and other information to support commenters' views. As a result of public input received on the PR, FGIS will develop a final rule for publication in the Federal Register .

Subsequent to 2015 amendments to the USGSA and the 2016 changes to the FGIS regulations, a number of nonuse of service exceptions were terminated. The 2018 Farm Bill directed USDA to allow for restoration of those exceptions where appropriate. Interested parties were given an opportunity to submit restoration requests to FGIS, as described in a Notice to Trade published on March 5, 2019. 5

The amended USGSA provides that the nonuse of service exception may only be terminated if all parties to the exception jointly agree on the termination. 6 This means that the customer, the assigned OA, the OA that has been providing service under the exception (gaining OA), and FGIS must agree to terminate the exception. This ensures that: (1) All parties are aware of the change and (2) the assigned OA will resume providing service to the customer.

The requirement for all parties to the exception to jointly agree on termination of the nonuse of service exception does not apply if the designation of an OA is terminated. 7 If the designation of an OA is renewed or restored after being terminated, the exceptions that were previously approved, under 7 U.S.C. 79(f)(2)(B), may be renewed or restored by requesting a determination from FGIS.

The ANPR suggested three criteria for timely service exceptions and four criteria for nonuse of service exceptions, and requested input on 11 questions regarding factors that could impact decisions on exceptions. FGIS would like to thank those who participated in this process for providing valuable input. Not all commenters provided feedback on criteria for every exemption or on every question in the ANPR. Most recognized the need for the official system to be customer focused and to provide timely and accurate services.

FGIS received mixed comments about timely service and nonuse of service exceptions. Some commenters stated that they thought the nonuse of service exception involved the inability of the OA to provide timely service. The USGSA specifies these are two separate exceptions; therefore, FGIS is using the feedback to the ANPR to improve and clarify the requirements under the appropriate exception.

The ANPR criteria for timely service exceptions included that: the requesting facility would be required to submit a written or verbal request for an exception to FGIS, along with documentation regarding the designated OA's inability to provide service within six hours from the requested service. Further, the OA would have to be unable to provide requested services within timeframes established in the OA's approved fee schedule. The ANPR criteria for nonuse of service exception requests included the requesting facility (customer or applicant) demonstrating they have not received official services for 90 days, documenting why they have not received service, and providing a written or verbal request for an exception. In addition, the ANPR suggested potential factors for consideration, some of which now fit within the expanded criteria for timely service requests.

In the feedback to the ANPR criteria for timely service exceptions, some commenters supported the criteria but provided differing opinions on how to apply the criterion regarding timeframes for services provided. One suggested that customers should not be allowed to routinely call their OA after business hours as a mechanism for obtaining service from another OA. Here, FGIS notes parameters required for requesting official services are defined in 800.116(b) and OA fee schedules. FGIS also received requests to clarify which services are included in a timely service exception. Industry feedback indicates some OA's do not offer all official services some customers request. Others indicate that weather events could impact access to timely service. Timely service exceptions criterion in this PR would provide an avenue to accommodate these situations.

In the feedback to the ANPR criteria for nonuse of service exceptions, some commenters asked FGIS to add flexibility to the nonuse of service exception and to rename it “service exception”. According to industry input, customers occasionally face limitations in the types of services offered by the assigned OA. This again indicated to FGIS that there is confusion about the criteria for timely service and the criteria for nonuse of service exceptions. In addition, the feedback on the number of days without official service (for nonuse of service exceptions) had a wide range, from 30 to 180 days. As stated in the ANPR, prior ranges allowed were between 90 to 180 days in length. A period of 90 days is within timeframes used for the nonuse of service exception in the past and is a compromise based on timeframes suggested in the comments.

In the general feedback to the ANPR, FGIS received comments expressing concern that some requests for exceptions relayed false or misleading information. These comments questioned how FGIS would validate requests for exceptions and whether the assigned OA would have an opportunity to respond to the request. Therefore, FGIS proposes adding a validation process for requests for exceptions. This would allow all parties to submit information and data regarding the request. FGIS would review information and assess requests to ensure the integrity of the official system is maintained. FGIS also received feedback expressing concern that nonuse of service exceptions negatively impact the integrity of the official system. FGIS has attempted to address all feedback within this PR.

Amendments proposed would modify parameters for the exceptions program for timely service and reinstate the exception program for nonuse of service in 7 CFR 800.117, to comply with amendments made to the USGSA in the 2018 Farm Bill. This PR incorporates feedback received from the public on the ANPR to create a clear, consistent, and fair framework for considering and granting these exceptions, which allow designated OAs to perform grain inspections outside their geographic areas under certain conditions. Timely service and nonuse of service are two of those conditions. This PR defines and differentiates between timely service and nonuse of service exceptions and their associated requirements.

Under § 800.117(b)(1), the industry would have a mechanism to request and receive timely service from an alternate OA. Applicants could also request timely service exceptions for delays caused by weather events and requests for services that are not offered by the assigned OA. For a timely service exception, FGIS would grant an exception when: (1) The designated OA is unable to provide services to an applicant within 6 hours or the OA is unable to provide results and certificate in accordance with 800.160(c); or (2) a request for services not offered by the assigned OA would result in an inability to receive timely service; or (3) a weather event or impact caused by a weather event results in an inability to receive timely service from the assigned OA; and (4) granting an exception is in the best interest of the integrity of the official system. It is important to note that not all of these instances indicate a delay caused by the assigned OA and that the reasons and justification for the exception request weigh more prominently for nonuse of service requests than timely service. This PR proposes a tiered progression for timely service exceptions. The first is a one-time timely service exception. In the case of untimely service, the ability to use another official agency may be granted for the next service request, as applicable. The second is a 90-day timely service exception. If, after the first request is granted, a second instance occurs within 180 days, the customer may apply for a 90-day exception. Once granted, the alternate OA would provide services to the customer for 90 days. The third is a long-term timely service exception. If there is another occurrence, within 365 days of the return to the assigned OA, the applicant may request a long-term exception, extending until the termination date of the gaining agency's designation. If FGIS determines the assigned OA's inability to provide a specific service, limited due to weather events or service availability, has been resolved, FGIS may terminate the long-term exception. If FGIS terminates a long-term exception, all parties would be notified, and the applicant would resume service with the assigned OA within 60 days of notification. However, if the exception was associated with the assigned OA's inability to provide service in 6 hours or less, or timely issuance of the results and certificate, FGIS may not terminate the exception. During the duration of exceptions caused by a failure of the assigned OA to supply timely service, the assigned OA should work on improving their ability to provide the requested services.

For nonuse of service exception requests, this PR defines the period of nonuse as 90 days. The PR also specifies, but does not limit, categories FGIS would take into consideration when reviewing requests for nonuse of service exceptions. These include: (1) The location of the specified service point(s); (2) the ability of the alternate OA to take on additional customers; (3) the ability of the assigned OA to staff an onsite laboratory; (4) whether the requesting facility has ever previously utilized the official system ( i.e., facilities that have never used the official system would not qualify for nonuse of service exception, nor would a facility that was under new ownership by a company with no history of use of the official system). For a nonuse of service exception, FGIS would grant an exception when: (1) An OA has not provided service to an applicant within their assigned geographic area within the established time period, (2) FGIS receives a request for a nonuse of service exception from an applicant, and (3) granting an exception is in the best interest of the integrity of the official system. In some cases, the cost of the equipment is more than the OA would be able to recoup, due to the infrequency of the requests. FGIS would take these factors into consideration when reviewing requests for exceptions and would work with the OAs and customers to find a solution.

FGIS recognizes there may be instances where granting an exception may impact the assigned OA's viability and instances where there is concern about the integrity of the official system. In such instances, FGIS proposes adding a challenge process into this regulation. As an example, FGIS would consider factors such as percent of business or percent of customers lost due to 90-day and long-term exceptions. Requests for a challenge must clearly state and support the identified reason for the request. The assigned OA must include supporting documentation for FGIS to review as part of this process. FGIS seeks input from industry participants and OAs on the challenge process. We welcome and encourage the submission of data and other information to support commenters' views.

FGIS proposes to add the nonuse of service exception back into the regulations, under § 800.117(b)(2). The industry would be able to apply for official services from an alternate OA if they have not received official services within the previous 90 days. In addition, FGIS proposes to evaluate criteria defined in the section to promote clarity, consistency, and transparency. FGIS also proposes to expand and clarify options for exceptions under timely service. Applications for timely service exceptions would undergo a more streamlined approval process and require less rigorous justification by the applicant than those submitted for nonuse of service exceptions. For both types of exceptions, the PR establishes processes to address assigned OA concerns of potentially false or misleading exception requests and validation of requests by FGIS.

Executive Orders 12866—Regulatory Planning and Review, and 13563—Improving Regulation and Regulatory Review, direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, harmonizing rules, and promoting flexibility.

In this initial evaluation of costs and benefits of the rule, FGIS has determined that the proposed rule does not meet the criteria of a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Moreover, FGIS finds that the rule does not create any new material costs for industry.

Under the USGSA, the USDA regulates the inspection of barley, canola, corn, flaxseed, mixed grain, oats, rye, sorghum, soybeans, sunflower seed, triticale, and wheat. This rule impacts the 42 OAs that provide USDA-regulated grain certification and the 5,218 commercial entities they serve. In FY2020, OAs performed 3,093,261 grain inspections of 240.3 million metric tons of grain. 8 FGIS expects fewer than one percent of the entities served by OAs to request and be granted exceptions under the rule.

Official inspection costs represent a very small percentage of the total value of grain shipment. In 2018, FGIS calculated weighted average costs for inspections for different carriers as follows: $24.50 for a semi-truck capable of carrying 58,000 pounds, $24.65 for a railcar capable of carrying 220,000 pounds, and $234.42 for a barge capable of carrying 3,000,000 pounds of grain. For example, if the price of wheat was $5 for a 60-pound bushel, the cost of the inspection would represent 0.53% of the revenue for a truck, 0.13% of the revenue for a railcar train, and 0.08% of the revenue for a barge.

Federally regulated grain inspection is designed to remedy two competing sources of market failure—asymmetric information and market power—while preserving the ability of small producers to access markets. This rule increases the flexibility of the existing inspection program without affecting the program's quality standards or the ability of small sellers to access inspection services. Greater flexibility in allowing producers to obtain inspection services, however, will save costs and provide them greater ability to meet potential market opportunities.

Many agricultural products, including grain, vary in important quality characteristics due to both farm production decisions and idiosyncratic factors. In the absence of a quality verification process, sellers in transactions may have more knowledge of product quality than buyers, a condition called asymmetric information. Akerlof (1970) showed asymmetric information can cause economic inefficiencies in which producers forego investments that are less costly to implement than the benefit they provide consumers. 9 Third-party inspection that verifies a product's quality resolves this source of market failure.

Grain inspectors certify the protein content, kernel size, and other quality factors related to product's market value to simplify transactions. Since the outcome of grain inspections directly affects the sale price, biases and inconsistences in inspection methods might potentially redistribute the gains to trade from seller to buyer, or vice versa. Market power might exacerbate the tendency to bias and inconsistency if, for instance, large sellers or buyers can influence the outcome of quality inspections in their favor. In addition to fairness concerns, such opportunistic behavior creates economic inefficiencies by reducing returns on investment in quality improvement and creating costs for downstream producers ( i.e., bakers and food processors) expecting products of certain quality.

Grain inspection is an optional service. When information asymmetries are a concern, inspection facilitates simpler, more rapid, and less risky transaction of final product. By allowing producers to recoup the costs of quality improvement, grain inspection also encourages investment in quality improvement.

Under its regulatory authority, the USDA approves grain inspection standards and monitors their uniform application by OAs. To promote a competitive market for grain, in which all producers have access to inspection services, FGIS requires that OAs provide inspection services to all producers in an assigned area and regulates marketing fee schedules charged by OAs for these services. FGIS approves rates to cover various labor, laboratory, and travel costs and only approves differential rates across geographic areas if underlying costs differ across assigned regions. For this reason, FGIS does not expect this rule to impact the prices paid by inspection users or the fees received by OAs. Instead, FGIS expects this rule will allow the small fraction of inspection users who need “timely service” and “nonuse of service” exceptions greater flexibility in obtaining inspections services to meet immediate business requirements.

FGIS considers economic benefits of this rule as being three-fold. First, the rule provides clarity to producers regarding the terms under which exceptions are granted. Second, the rule increases options to producers who require inspection services to market their grain. FGIS expects that this option will be utilized by fewer than one percent producers who need inspections services quickly but face service constraints by OAs. Third, the rule may heighten attention to service issues among OAs that have received nonuse of service exception requests. The validation process FGIS will maintain as part of the granting of exceptions will ensure requests serve a valid business purpose. OAs may offer additional services such as a broader range of testing as a result.

FGIS does not ascribe any direct compliance costs to either OAs or producers as a result of the potential increase for timely service and nonuse of service exceptions under this rule. FGIS does not expect that inspection fees it approves will change as a result of this rule. To the extent that this rule provides greater flexibility to how producers can obtain inspection services, it will provide improved services or reduce total costs to producers by, for instance, allowing those needing immediate inspections to get them from an OA other than the one to which they are assigned. Moreover, FGIS does not believe the rule will create significant indirect costs, aside from minor costs to market participants learning the rule and documenting exceptions.

To the extent that some OAs conduct fewer inspections because producers in their assigned area have requested more exceptions, other OAs will conduct more inspections. FGIS believes that any business losses to an OA will be small and that any losses will be offset by gains to other OAs. This rearrangement of business activity constitutes a transfer of benefits from one OA to another and has a neutral effect on total costs and benefits of the rule.

To summarize, FGIS believes that the total impact of the rule on the grain inspection industry is not economically significant and that the benefits of this rule exceed its costs, which are negligible.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) requires agencies to consider the impact of their rules on small entities and to evaluate alternatives that would accomplish objectives of the rule without unduly burdening small entities when rules impose a significant economic impact on a substantial number of small entities. This rule has an economic impact on farms selling grain that require inspections (classified under North American Industry Classification System, or NAICS, codes 111110, 111120, 111130, 111140, 111150, 111191, 111160, 111191, and 111199), grain elevators and grain certifiers that conduct post-harvest crop activities (NAICS code 115114) and either require or perform inspections. The Small Business Administration (SBA) considers grain farms to be small if their sales are less than $1 million and grain elevators and grain certifiers (OAs) to be small if their sales are less than $30 million (13 CFR 121.201).

FGIS certifies that this rule does not have a significant economic impact on small businesses. This determination is made based on FGIS's expectation that any small entities requiring grain inspection, including grain farms and grain elevators, or entities performing grain inspection, including OAs, will see neither a change in prices paid or fees charged nor a loss in access to inspection services or change in territorial boundaries for which they can perform inspections. Further, FGIS believes its proposed challenge process addresses the concern that some small OAs may lose economic viability when exceptions are granted to customers under the exceptions to geographic boundary requirement.

This proposed rule has been reviewed under Executive Order 12988—Civil Justice Reform. This rule is not intended to have retroactive effect. The USGSA provides in sec. 87g that no State or subdivision thereof may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the Act.

This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. No administrative proceedings would be required before parties could file suit in court challenging the provisions of this rule.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government- to-government basis on: (1) Policies that have tribal implications, including regulations, legislative comments or proposed legislation; and (2) other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Agricultural Marketing Service (AMS) has assessed the impact of this proposed rule on Indian tribes and determined that this rule would not have tribal implications that require consultation under Executive Order 13175. AMS hosts a quarterly teleconference with tribal leaders where matters of mutual interest regarding the marketing of agricultural products are discussed. Information about proposed changes to regulations will be shared during an upcoming quarterly call, and tribal leaders will be informed about proposed revisions to the regulation and the opportunity to submit comments. AMS will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided as needed with regards to the proposed regulations.

AMS has provided 30 days for comments on this proposed rule. All comments received by September 20, 2021 will be considered prior to finalizing this proposed rule. Comments in response to any or all of the above processes or proposed wording should be submitted to the address provided in the ADDRESSES section of this document to ensure consideration.

For reasons set forth in the preamble, FGIS proposes to amend 7 CFR part 800 as follows:

The additions and revision read as follows:

Amendments to the Energy Policy and Conservation Act (“EPCA”) in the Energy Independence and Security Act of 2007, Public Law 110-140 (“EISA”) directed DOE to conduct a number of rulemakings regarding coverage of lamps as GSLs and GSILs, and to evaluate energy conservation standards for such lamps. 42 U.S.C. 6295(i)(6)(A)-(B). Pursuant to this authority, DOE conducted a rulemaking to establish revised regulatory definitions for GSLs and GSILs. See 82 FR 7276 (Jan. 19, 2017); 82 FR 7322 (Jan. 19, 2017). Subsequently, DOE conducted a rulemaking in which it withdrew these revised definitions before they took effect. 84 FR 46661 (Sept. 5, 2019). The following paragraphs provide an overview of the authorities and final rules issued by DOE relevant to the definitions for GSL, GSIL, and related terms, as proposed in this NOPR.

EPCA, as amended, 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. 42 U.S.C. 6291-6317. Title III, Part B  2 of EPCA, established the Energy Conservation Program for Consumer Products Other Than Automobiles. 42 U.S.C. 6291-6309. These products include GSLs, the subject of this rulemaking.

EPCA directs DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSLs. 42 U.S.C. 6295(i)(6)(A)-(B). GSLs are defined in EPCA to include GSILs, compact fluorescent lamps (“CFLs”), general service light-emitting diode (“LED”) lamps and organic light emitting diode (“OLED”) lamps, and any other lamps that the Secretary of Energy (“Secretary”) determines are used to satisfy lighting applications traditionally served by general service incandescent lamps. 42 U.S.C. 6291(30)(BB)(i), (CC)(i), (DD). The EPCA provision setting forth relevant definitions indicates that the term “general service lamp” in EPCA does not include any of the twenty-two lighting applications or bulb shapes explicitly not included in the definition of “general service incandescent lamp,”  3 or any general service fluorescent lamp or incandescent reflector lamp. 42 U.S.C. 6291(30)(BB)(ii).

For the first rulemaking cycle, EPCA directs DOE to initiate a rulemaking process prior to January 1, 2014, to consider two questions: (1) Whether to amend energy conservation standards for general service lamps to establish more stringent standards than EPCA specifies, and (2) whether “the exemptions for certain incandescent lamps should be maintained or discontinued.” 42 U.S.C. 6295(i)(6)(A)(i). In developing such a rule, DOE must consider a minimum efficacy standard of 45 lumens per watt (“lm/W”). 42 U.S.C. 6295(i)(6)(A)(ii). Further, if the Secretary determines that the standards in effect for GSILs should be amended, EPCA provides that a final rule must be published by January 1, 2017, with an effective date at least three years after the date on which the final rule is published. 42 U.S.C. 6295(i)(6)(A)(iii). Additionally, EPCA directs that the Secretary shall consider phased-in effective dates after considering certain economic factors. 42 U.S.C. 6295(i)(6)(A)(iv). If DOE fails to complete a rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), or if a final rule from the first rulemaking cycle does not produce savings greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, the statute provides a “backstop” under which DOE must prohibit sales of GSLs that do not meet a minimum 45 lm/W standard. 42 U.S.C. 6295(i)(6)(A)(v).

EPCA further directs DOE to initiate a second rulemaking cycle by January 1, 2020, to determine whether standards in effect for GSILs (which are a subset of GSLs) should be amended with more stringent maximum wattage requirements than EPCA specifies, and whether the exemptions for certain incandescent lamps should be maintained or discontinued. 42 U.S.C. 6295(i)(6)(B)(i). As in the first rulemaking cycle, the scope of the second rulemaking is not limited to incandescent lamp technologies. 42 U.S.C. 6295(i)(6)(B)(ii).

In addition to the two mandated rulemaking cycles, under the statutory definition of GSL, DOE has authority to include lamps as GSLs upon determining that they are “used to satisfy lighting applications traditionally served by general service incandescent lamps.” 42 U.S.C. 6291(30)(BB)(i)(IV).

Pursuant to its statutory authority, DOE published a Notice of Proposed Rulemaking on March 17, 2016 that addressed the first question that Congress directed it to consider—whether to amend energy conservation standards for GSLs (“March 2016 NOPR”). 81 FR 14528, 14629-14630 (Mar. 17, 2016). In that NOPR, DOE stated that it would be unable to undertake any analysis regarding GSILs and other incandescent lamps because of a then-applicable congressional restriction (“the Appropriations Rider”). See Id. at 81 FR 14528, 14540-14541. The Appropriations Rider prohibited expenditure of funds appropriated by that law to implement or enforce: (1) 10 CFR 430.32(x), which includes maximum wattage and minimum rated lifetime requirements for GSILs; and (2) standards set forth in section 325(i)(1)(B) of EPCA (42 U.S.C. 6295(i)(1)(B)), which sets minimum lamp efficiency ratings for incandescent reflector lamps (“IRLs”). Under the Appropriations Rider, DOE was restricted from undertaking the analysis required to address the first question presented by Congress, but was not so limited in addressing the second question—that is, DOE was not prevented from determining whether the exemptions for certain incandescent lamps should be maintained or discontinued. To address that second question, DOE published a Notice of Proposed Definition and Data Availability (“NOPDDA”), which proposed to amend the definitions of GSIL, GSL, and related terms (“October 2016 NOPDDA”). 81 FR 71794, 71815 (Oct. 18, 2016). Notably, the Appropriations Rider originally was adopted in 2011 and was readopted and extended continuously in multiple subsequent legislative actions. It expired on May 5, 2017, when the Consolidated Appropriations Act, 2017 was enacted. 4

On January 19, 2017, DOE published two final rules concerning the definitions of GSL, GSIL, and related terms. 82 FR 7276; 82 FR 7322 (“January 2017 Final Rules”). The January 2017 Final Rules amended the definitions of GSIL and GSL by bringing certain categories of lamps within the definitions of GSIL and GSL that EPCA had exempted. These two rules were issued simultaneously, with the first rule maintaining the existing exemption for IRLs in the definition of GSL and the second rulemaking determining to discontinue the IRL exemption. See 82 FR 7312; 82 FR 7323. The January 2017 Final Rules related only to the second question that Congress directed DOE to consider, regarding whether to maintain or discontinue “exemptions” for certain incandescent lamps. 42 U.S.C. 6295(i)(6)(A)(i)(II). DOE explained in the rule that the discontinuation of certain exemptions would render the lamps within those exemptions GSLs, to the extent they would otherwise qualify as GSLs. For certain lamps, the discontinuation of the exemption may also render the lamp a GSIL, to the extent it would otherwise qualify as a GSIL. 82 FR 7277. DOE stated that it would then either impose standards on these lamps pursuant to its authority to develop GSL standards or apply the backstop standard prohibiting the sale of lamps not meeting a 45 lm/W efficacy standard. 82 FR 7276, 7277. The definitions in the January 2017 Final Rules were to become effective on January 1, 2020. 82 FR 7276, 7276; 82 FR 7322, 7322.

With the removal of the Appropriations Rider in the Consolidated Appropriations Act, 2017, DOE was no longer restricted from undertaking the analysis and decision-making required to address the first question presented by Congress—that is, whether to amend energy conservation standards for GSLs, including GSILs. Thus, on August 15, 2017, DOE published a Notice of Data Availability and request for information (“NODA”) seeking data for GSILs and other incandescent lamps (“August 2017 NODA”). 82 FR 38613.

The purpose of the August 2017 NODA was to assist DOE in determining whether standards for GSILs should be amended. 42 U.S.C. 6295(i)(6)(A)(i)(I). Comments submitted in response to the August 2017 NODA also led DOE to reconsider the decisions it had already made with respect to the second question presented to DOE (whether the exemptions for certain incandescent lamps should be maintained or discontinued). 42 U.S.C. 6295(i)(6)(A)(i)(II). As a result of the comments received in response to the August 2017 NODA, DOE also re-assessed the legal interpretations underlying certain decisions made in the January 2017 Final Rules.

On February 11, 2019, DOE published a NOPR proposing to withdraw the revised definitions of GSL and GSIL, and the new and revised definitions of related terms that were to go into effect on January 1, 2020. 84 FR 3120. In a final rule published September 5, 2019, DOE finalized the withdrawal of the definitions of GSIL, GSL, and related terms established in the January 2017 Final Rules. 84 FR 46661 (“September 2019 Withdrawal Rule”). Informed, in part, by comments received in response to the August 2017 NODA, DOE concluded in the September 2019 Withdrawal Rule that maintaining the definitions for GSL and GSIL as established by EPCA and not discontinuing certain exemptions pursuant to the required review under 42 U.S.C. 6295(i)(6)(A)(i) was the best reading of the statute. 84 FR 46661, 46665-46666. DOE also stated that it identified inaccuracies underlying its determination to revise the definitions of GSL and GSIL. 84 FR 46661, 46665. Based on data received in response to the August 2017 NODA, DOE learned that it had overestimated shipment numbers for candelabra base incandescent lamps by a factor of more than two. Id. In withdrawing the definitions established in the January 2017 Final Rules, DOE specifically addressed its determinations to maintain the exemptions for rough service lamps; shatter-resistant lamps; three-way incandescent lamps; high lumen incandescent lamps (2,601-3,300 lumens); vibration service lamps; T-shape lamps of 40 watts (“W”) or less or length of 10 inches or more; B, BA, CA, F, G16-1/2, G25, G30, S, M-14 lamps of 40 W or less; candelabra base lamps; and IRLs. Id.

The September 2019 Withdrawal Rule also addressed issues and comments regarding the imposition of the 45 lm/W backstop, applicability of EPCA's anti-backsliding provision at 42 U.S.C. 6295(o), and preemption of State regulation of lamps. 84 FR 46663-46665, 46669. These additional issues are not the subject of this NOPR. DOE has requested comments and data to inform further consideration of the 45 lm/W backstop provision. See 86 FR 28001 (May 25, 2021).

As a result of the September 2019 Withdrawal Rule, the amended definitions of GSL and GSIL and the new and revised definitions of related terms established in the January 2017 Final Rules were withdrawn prior to going into effect. The current regulatory definitions of GSL and GSIL are those set forth in EPCA. See 10 CFR 430.2; see also 42 U.S.C. 6291(30)(D); 42 U.S.C. 6291(30)(BB).

Subsequent to the September 2019 Withdrawal Rule, on January 20, 2021, President Biden issued Executive Order (“E.O.”) 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037 (Jan. 25, 2021). Section 1 of that Order lists a number of policies related to the protection of public health and the environment, including reducing greenhouse gas emissions and bolstering the Nation's resilience to climate change. 86 FR 7037, 7041. Section 2 of the Order instructs all agencies to review “existing regulations, orders, guidance documents, policies, and any other similar agency actions . . . promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, [these policies].” Id. Agencies are then directed, as appropriate and consistent with applicable law, to consider suspending, revising, or rescinding these agency actions and to immediately commence work to confront the climate crisis. Id.

Consistent with E.O. 13990, DOE has undertaken a review of the definitions of GSL and GSIL in the September 2019 Withdrawal Rule and the January 2017 Final Rules. Although E.O. 13990 triggered DOE's review, DOE is relying on its analysis below, based on the language and intent of EPCA, to support its decision to reconsider the September 2019 Withdrawal Rule. As a result of this review, DOE rejects the alternative interpretation of the statutory directives in EPCA set forth in the September 2019 Withdrawal rule and preliminarily determines that DOE's interpretation in this proposed rule is the best and proper reading of the statute.

In this NOPR, DOE proposes to amend the definitions of GSL and GSIL as previously set forth in the January 2017 Final Rules. DOE has preliminarily determined that the definitions as proposed are consistent with the congressional direction provided in EPCA and further the purposes set forth in EPCA, as well as in E.O. 13990. Additionally, DOE proposes to adopt the supplemental definitions established in the January 2017 Final Rules, which relate to the proposed definitions of GSL and GSIL. DOE is not proposing whether standards for GSLs, including GSILs, should be amended. Rather, DOE is proposing the scope of lamps to be considered in such a determination.

To provide context for this NOPR, this section provides further description of the statutory and regulatory definitions, as amended under the January 2017 Final Rules and September 2019 Withdrawal Rule rulemakings.

EPCA defines the class of GSLs as including GSILs, CFLs, general service LED and OLED lamps, and any other lamps that DOE determines are used to satisfy lighting applications traditionally served by GSILs; however, as initially specified by EPCA, GSLs did not include any lighting application or bulb shape that under 42 U.S.C. 6291(30)(D)(ii) is not included in the “general service incandescent lamp” definition, or any general service fluorescent lamp or incandescent reflector lamp. 42 U.S.C. 6291(30)(BB).

EPCA defines a GSIL generally as a standard incandescent or halogen type lamp that is intended for general service applications; has a medium screw base; has a lumen range of not less than 310 lumens and not more than 2,600 lumens or, in the case of a modified spectrum lamp, not less than 232 lumens and not more than 1,950 lumens; and is capable of being operated at a voltage range at least partially within 110 and 130 volts. 42 U.S.C. 6291(30)(D)(i). This definition does not apply, however, to the following incandescent lamps: An appliance lamp; a black light lamp; a bug lamp; a colored lamp; an infrared lamp; a left-hand thread lamp; a marine lamp; a marine signal service lamp; a mine service lamp; a plant light lamp; a reflector lamp; a rough service lamp; a shatter-resistant lamp (including a shatter-proof lamp and a shatter-protected lamp); a sign service lamp; a silver bowl lamp; a showcase lamp; a three-way incandescent lamp; a traffic signal lamp; a vibration service lamp; a G shape lamp (as defined in ANSI C78.20 and ANSI C79.1-2002) with a diameter of 5 inches or more; a T shape lamp (as defined in ANSI C78.20 and ANSI C79.1-2002) and that uses not more than 40 watts or has a length of more than 10 inches; and a B, BA, CA, F, G16-1/2, G-25, G30, S, or M-14 lamp (as defined in ANSI C79.1-2002 and ANSI C78.20) of 40 watts or less. 42 U.S.C. 6291(30)(D)(ii).

In the January 2017 Final Rules, invoking the rulemaking authority afforded by EPCA in 42 U.S.C. 6291(30)(BB)(i)(IV), DOE amended the regulatory definition of GSL to mean a lamp that had an ANSI base; was able to operate at a voltage of 12 volts or 24 volts, at or between 100 to 130 volts, at or between 220 to 240 volts, or of 277 volts for integrated lamps, or was able to operate at any voltage for non-integrated lamps; had an initial lumen output of greater than or equal to 310 lumens (or 232 lumens for modified spectrum general service incandescent lamps) and less than or equal to 3,300 lumens; was not a light fixture; was not an LED downlight retrofit kit; and was used in general lighting applications. 82 FR 7312. General service lamps included, but were not limited to, general service incandescent lamps, compact fluorescent lamps, general service light-emitting diode lamps, and general service organic light-emitting diode lamps. 82 FR 7276, 7321.

As defined in the January 2017 Final Rules, GSLs did not include: (1) Appliance lamps; (2) Black light lamps; (3) Bug lamps; (4) Colored lamps; (5) G shape lamps with a diameter of 5 inches or more as defined in ANSI C79.1-2002; (6) General service fluorescent lamps; (7) High intensity discharge lamps; (8) Infrared lamps; (9) J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do not have Edison screw bases; (10) Lamps that have a wedge base or prefocus base; (11) Left-hand thread lamps; (12) Marine lamps; (13) Marine signal service lamps; (14) Mine service lamps; (15) MR shape lamps that have a first number symbol equal to 16 (diameter equal to 2 inches) as defined in ANSI C79.1-2002, operate at 12 volts, and have a lumen output greater than or equal to 800; (16) Other fluorescent lamps; (17) Plant light lamps; (18) R20 short lamps; (19) Reflector lamps that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1- 2002 and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases; (20) S shape or G shape lamps that have a first number symbol less than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as defined in ANSI C79.1-2002; (21) Sign service lamps; (22) Silver bowl lamps; (23) Showcase lamps; (24) Specialty MR lamps; (25) T shape lamps that have a first number symbol less than or equal to 8 (diameter less than or equal to 1 inch) as defined in ANSI C79.1-2002, nominal overall length less than 12 inches, and that are not compact fluorescent lamps; and (26) Traffic signal lamps. Id.; 82 FR 7322, 7333.

The January 2017 Final Rules defined GSIL to discontinue the exemptions for rough service lamps; shatter-resistant lamps; three-way incandescent lamps; vibration service lamps; reflector lamps; T-shape lamps of 40 W or less or length of 10 inches or more; and B, BA, CA, F, G16-1/2, G25, G30, S, M-14 lamps of 40 W or less. 82 FR 7276, 7291.

DOE subsequently withdrew the definitions as established in the January 2017 Final Rules before their effective date and reverted to the statutory definitions. As a result, the exemptions from the definitions of GSL and GSIL as originally provided in EPCA are currently maintained.

The September 2019 Withdrawal Rule failed to give meaningful effect to the statutory direction that DOE determine whether exemptions for certain incandescent lamps should be discontinued. In adopting the rulemaking mandate, Congress provided DOE with the authority to adjust the scope of GSLs and GSILs to ensure that the energy savings Congress intended would be achieved notwithstanding the possibility that, with the passage of time, different lamps might be used to satisfy lighting applications traditionally served by GSILs. 42 U.S.C. 6295(i)(6)(A)(i)-(ii). In disavowing DOE's prior conclusions in the January 2017 Final Rules, the September 2019 Withdrawal Rule incongruously asserted that the statutory command to DOE to determine whether to discontinue certain exemptions did not give DOE authority to amend statutory definitions by regulation, 84 FR 46667, but then failed to explain what that command does authorize. In doing so, the September 2019 Withdrawal Rule disregarded congressional intent as expressed through the statutory language. In contrast, the position taken in the January 2017 Final Rules did fulfill the intent of Congress by using the authority granted to DOE through EISA to achieve the energy savings for GSLs that Congress expected. This position represents the best implementation of EPCA given the potential for lost energy savings that may result from the use of lamps in general lighting applications that would not be subject to energy conservation standards. As DOE understood in the January 2017 Final Rules, EPCA exempted certain categories of lamps because, on the one hand, some lamps in those categories have specialty applications; and on the other hand, it was not clear, at the time when these lamp provisions were originally enacted, whether those lamps were used to satisfy lighting applications traditionally served by GSILs. 82 FR 7276, 7277. The purpose, then, of the determination Congress directed DOE to make ( i.e., whether to maintain or to discontinue a given exemption (42 U.S.C. 6295(i)(6)(A)(i)(II))) was that DOE should assess the role of lamps of the various exempted types in the broader lighting market, bearing in mind the evident statutory purpose of achieving energy conservation by imposing efficiency standards for general lighting. Id. at 82 FR 7276, 7277. That is, Congress directed DOE to evaluate whether the exempted lamps are being used in applications in which GSILs have previously been used.

In the September 2019 Withdrawal Rule, DOE failed to properly consider the congressional intent underlying EPCA generally and EISA specifically, and, consequently, failed to read the statute in the proper context, leading to an incorrect interpretation by DOE in 2019 that it could not exercise its authority to remove exemptions for certain incandescent lamps that are used in general lighting applications. The initial determination reached here to adopt the definitions established in the January 2017 Final Rules best aligns with EPCA's goals for increasing the energy efficiency of covered products through the establishment and amendment of energy conservation standards and promoting conservation measures when feasible. 42 U.S.C. 6291 et seq., as amended.

As discussed in section I.A, EPCA directs DOE to initiate a rulemaking process prior to January 1, 2014, to consider two questions: (1) Whether to amend energy conservation standards for general service lamps and (2) whether “the exemptions for certain incandescent lamps should be maintained or discontinued.” 42 U.S.C. 6295(i)(6)(A)(i). In the January 2017 Final Rules, which addressed the second question, DOE understood the purpose of the determinations regarding exemptions required under section (i)(6)(A)(i)(II) of EPCA to be to ensure that a given exemption would not impair the effectiveness of GSL standards by leaving available a convenient substitute that is not regulated as a GSL. DOE based its decision for each exemption on an assessment of whether the exemption encompasses lamps that can provide general illumination and can functionally be a ready substitute for lamps already covered as GSLs. Id. A lamp that is capable of providing general illumination has design features that make it highly suitable for performing that task in the sort of application in which GSILs have traditionally served. 82 FR 7276, 7303. The technical characteristics of lamps in a given exemption and the volume of sales of those lamps were among the considerations relevant to that assessment. 82 FR 7276, 7288. High annual sales were an indication that the product is likely used in general lighting applications, because the sales of lamps for specialty applications tend to be relatively small compared with sales for general-purpose lighting. Id. DOE also cautioned that sales data are not the only consideration, as it may be appropriate to discontinue an exemption even though current sales are relatively low, if technical characteristics of the exempted lamps make them likely to serve as ready substitutes for GSLs once GSL standards are in place. Id.

Contrary to this position, in the September 2019 Withdrawal Rule, DOE stated that it may have overstepped its limited authority by relying on factors that Congress did not intend it to consider. DOE further stated that it was no longer using “convenient unregulated alternatives” as a basis upon which to discontinue exemptions for specialty lamp types. DOE agreed with those commenters that asserted this consideration went beyond the authority granted by Congress to use the potential that a lamp may be considered a loophole to GSL standards as the basis for discontinuing its exemption under the statute. 84 FR 46661, 46668-46669. Subsequently, in the September 2019 Withdrawal Rule, DOE maintained the definitions of GSLs and GSILs. Id.

Upon reviewing the September 2019 Withdrawal Rule, DOE now recognizes that the analysis in that rule may have overlooked certain considerations and may not have accurately characterized the actions taken in the January 2017 Final Rules. Certain factors were not fully explored in the September 2019 Withdrawal Rule and merit consideration in determining whether to amend the definitions of GSL and GSIL. The specific discussions from the September 2019 Withdrawal Rule that require further consideration are addressed in the appropriate sections that follow.

Based on the analysis and evaluation presented in the rulemaking culminating in the January 2017 Final Rules, and the discussion that follows, DOE is proposing to define GSIL to mean: A standard incandescent or halogen type lamp that is intended for general service applications; has a medium screw base; has a lumen range of not less than 310 lumens and not more than 2,600 lumens or, in the case of a modified spectrum lamp, not less than 232 lumens and not more than 1,950 lumens; and is capable of being operated at a voltage range at least partially within 110 and 130 volts; however, this definition does not apply to the following incandescent lamps: An appliance lamp; a black light lamp; a bug lamp; a colored lamp; a G shape lamp with a diameter of 5 inches or more as defined in ANSI C79.1-2002; an infrared lamp; a left-hand thread lamp; a marine lamp; a marine signal service lamp; a mine service lamp; a plant light lamp; an R20 short lamp; a sign service lamp; a silver bowl lamp; a showcase lamp; and a traffic signal lamp.

The proposed definition explicitly exempts R20 short lamps to maintain an exemption for these lamps consistent with DOE's determination in a final rule published on November 14, 2013, that standards for R20 short lamps would not result in significant energy savings because such lamps are designed for special applications or have special characteristics not available in reasonably substitutable lamp types. 78 FR 68331, 68340.

As stated, GSILs are included in the definition of GSL. 42 U.S.C. 6291(30)(BB)(i)(I). Any lamp that meets the definition of a GSIL would be a GSL. As such, consideration of whether a GSIL exemption should be maintained, for purposes of both the GSL definition and the GSIL definition, is informed, in part, by the considerations under DOE's authority to include other lamps as GSLs because they “are used to satisfy lighting applications traditionally served by general service incandescent lamps.” 42 U.S.C. 6291(30)(BB)(i)(IV). Based on DOE's review of product availability, technical information, and prior stakeholder comments, DOE preliminarily finds that the unavailability of non-incandescent substitutes for a given lamp suggests that the lamp is not being used for traditional GSIL applications. If design characteristics of lamps for a given application are such that the non-incandescent lamp cannot be made with the same characteristics, DOE preliminarily concludes those lamps are not being used for general illumination and, therefore, such lamps would be excluded from the definition of GSLs See 82 FR 7276, 7301.

Also relevant to DOE's consideration of whether to maintain a GSIL exemption, DOE must also determine what types of lighting applications have been traditionally served by GSILs. As stated in the January 2017 Final Rules, traditionally, lamps that are standard incandescent or halogen and that satisfy the other criteria for the definition of GSIL in 42 U.S.C. 6291(30)(D) have served general lighting applications. 82 FR 7276, 7302. By “general lighting applications,” DOE means lighting that provides an interior or exterior area with overall illumination. DOE considers the term “overall illumination” to be similar in meaning to the term “general lighting” as defined in the industry standard ANSI/IES RP-16-10, which states that “general lighting” means lighting designed to provide a substantially uniform level of illuminance throughout an area, exclusive of any provision for special local requirements.

Further discussion of DOE's consideration of including other lamps as GSLs is discussed in greater detail in section III.D of this document. The following paragraphs discuss the proposed discontinuation of the exemptions for certain T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps; rough service lamps; vibration service lamps; three-way incandescent lamps; and shatter-resistant lamps.

In the January 2017 Final Rules, DOE discontinued the exemptions for certain T-shape lamps and certain B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps. 82 FR 7276, 7294. DOE found that T-shape lamps are frequently used in general lighting applications and thus present a significant risk for lamp switching. Based on this high potential for lamp switching—reflected in part by high sales—DOE discontinued the GSIL exemption for these lamps. Id. Regarding B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps, DOE noted that Congress listed these lamps together in paragraph (XXII), and so considered whether to maintain the exemption for these lamps as a group. Id. DOE also noted that the pear shapes and globe shapes characterized by the majority of lamps in this category would not prevent consumers from using them in general service lighting applications and found that these lamps are very common. 82 FR 7276, 7295. DOE considered the potential for lamp switching through the future use of different fixtures and found there to be a potential that inclusion of some but not all of the lamps in the group would shift the market to the lamp or lamps that remain exempt. Id. Accordingly, DOE discontinued exemptions in the GSIL definition for B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps of 40 W or less. Id.

However, in the January 2017 Final Rules, DOE did maintain exemptions from the GSL definition set forth in those final rules for the following lamp shapes: (1) T-shape lamps that have a first number symbol less than or equal to 8 (diameter less than or equal to 1 inch) as defined in ANSI C79.1-2002, nominal overall length less than 12 inches, and that are not compact fluorescent lamps; and (2) S-shape or G-shape lamps that have a first number symbol less than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as defined in ANSI C79.1-2002. DOE concluded that those lamps should not have been included in the GSL definition set forth in those final rules because they do not and likely cannot have equivalent replacements using more efficient technology. 82 FR 7276, 7310.

In the September 2019 Withdrawal Rule, DOE addressed the discontinuation of exemptions for certain T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps together with candelabra base lamps, stating that discontinuing the exemptions for all of these lamp categories was not consistent with the best reading of the statute because such lamps are not used in the same applications as the standard GSIL. 84 FR 46661, 46668. DOE stated that these lamps generally provide a more limited range of light output as compared with GSILs not subject to exemption, have form factors not as large as GSILs not subject to exemptions, and present a decorative aesthetic not replicated by GSILs not subject to the exemptions. Id.

Upon further consideration, DOE has tentatively determined that candelabra base lamps were inappropriately addressed with T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps in the September 2019 Withdrawal Rule. The January 2017 Final Rules determined whether T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps would remain exempt from the definition of GSIL, and thus were evaluated in the context of the GSIL definition. 82 FR 7276, 7297. Candelabra base lamps were not included in this evaluation since the lamps do not have a medium screw base as required under the GSIL definition. Instead, DOE determined in the January 2017 Final Rules that candelabra base lamps should be covered as GSLs. See 82 FR 7276, 7310. In this NOPR, DOE appropriately addresses in section III.D of this document candelabra base lamps in the context of the GSL definition.

Regarding the light output of certain T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps, DOE tentatively concludes that the September 2019 Withdrawal Rule inaccurately stated that these lamps provide a more limited range of light output as compared with GSILs not subject to exemption. However, these lamps were only considered to the extent that they were in the lumen range of 310-2600 per the GSIL definition. As such, in order to be included in the exemption under the statutory definition of GSIL, and therefore considered for discontinuation of the exemption in the January 2017 Final Rules, the lamps must have a lumen output of 310 lumens or greater, consistent with GSILs not subject to the exemption. As DOE concluded in the January 2017 Final Rules, even with a maximum wattage limitation, these lamps are still capable of providing overall illumination ( i.e., general illumination). 82 FR 7276, 7294-7295.

Regarding the form factor and size of certain T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps, DOE tentatively concludes that such lamps were not accurately compared to lamps that meet the current statutory definition of GSIL in the September 2019 Withdrawal Rule. The September 2019 Withdrawal Rule stated that these lamps have form factors not as large as currently defined GSILs. 84 FR 46661, 46668. However, DOE now recognizes that the most common GSIL is an A19 shape, 5 and that the G25 and G30 lamps have a diameter 31 percent and 57 percent greater, respectively, than the diameter of the A19 shape. Further, the September 2019 Withdrawal Rule stated that these lamp shapes present a decorative aesthetic not replicated by lamps that meet the current statutory definition of GSIL. Id. DOE no longer agrees that this statement supports continued exemption, as data indicates that the decorative shape does not prevent consumers from using them in general service lighting applications. See 82 FR 7276, 7310. Additionally, as described previously, some lamps with these shapes are currently certified as being compliant with DOE's standards for GSILs. As stated, if a more efficient version with the same shape cannot be made for a technical reason, DOE did not include the lamp as a GSL in the definition adopted by the January 2017 Final Rules and similarly does not propose to include such a lamp in the definition of GSL in this proposal.

With regard to T-shape lamps, DOE finds that T-shape lamps are capable of providing overall illumination and therefore can readily serve general lighting applications. See 82 FR 7276, 7294. With regard to B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps, DOE is considering whether to maintain the exemption for these lamps as a group due to its concern with lamp switching. As stated in the January 2017 Final Rules, DOE recognizes that the lamps listed here may each not be substituted for one another in existing fixtures, but present the potential for lamp switching through the future use of different fixtures. 82 FR 7276, 7295. As indicated by the high sales data of this category presented in the January 2017 Final Rules (82 FR 7276, 7291), DOE tentatively concludes these lamps to be very common and usable in general lighting applications. For the reasons discussed in the preceding paragraphs and presented in the January 2017 Final Rules, DOE has tentatively concluded that the basis for discontinuing the exemption for certain T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps in this proposal is the best interpretation of the statute. In contrast to the interpretation adopted by DOE in 2019, this proposal best satisfies the intent of Congress and implements the objective of the statutory language of EPCA to conserve energy through regulation of certain energy uses and provide improved energy efficiency of certain consumer products. See 42 U.S.C. 6201. Accordingly, DOE proposes to define these products as GSILs in this proposal. DOE requests information and data, if available, on sales data of T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, and M-14 lamps.

Under 42 U.S.C. 6295( l )(4), DOE is required to undertake a rulemaking for rough service lamps, shatter-resistant lamps, three-way incandescent lamps, and vibration service lamps when the sales of these lamps meet specified thresholds. 6 DOE is also required, in consultation with the National Electrical Manufacturers Association (“NEMA”), to collect sales data for these lamps and construct a model to predict future sales. 42 U.S.C. 6295( l )(4)(B). DOE must then track the actual sales data, and when sales exceed sales projected by the model by 100 percent, DOE must initiate an energy conservation standard rulemaking. 42 U.S.C. 6295( l )(4)(D), (E), (F), (H). If DOE does not complete the accelerated rulemaking in the specified time period, it must impose a backstop requirement for that lamp. 42 U.S.C. 6295( l )(4)(D)(ii), (E)(ii), (F)(ii), (H)(ii).

In the January 2017 Final Rules, DOE determined that the rulemaking provisions at 42 U.S.C. 6295( l )(4) were not the only way in which DOE can regulate these lamps. 82 FR 7276, 7296. DOE noted that the text of 42 U.S.C. 6295(i) and 42 U.S.C. 6295( l )(4) does not state that the 42 U.S.C. 6295( l )(4) process operates to the exclusion of regulating these lamps as GSLs and that the provisions under 42 U.S.C. 6295( l )(4) could be complementary to regulation of these lamps as GSLs. Id. Based in part on the potential for these lamp types to serve as replacements to regulated GSLs, DOE discontinued the exemption for rough service lamps, shatter-resistant lamps, three-way incandescent lamps and vibration service lamps in the January 2017 Final Rules. Id.

In the September 2019 Withdrawal Rule, DOE determined that, since these lamps are subject to standards in accordance with a specific regulatory process under 42 U.S.C. 6295( l )(4), there is no need to undertake an additional process for determining whether to establish energy conservation standards for these lamp types as GSLs under 42 U.S.C. 6295(i)(6)(A)(i). 84 FR 46661, 46666. DOE explained that doing so would potentially subject these lamps types to two separate standards and potentially create confusion among regulated entities. Id. Moreover, DOE noted that the regime for potential regulation of these lamp types was added to the statute in the same enactment that required DOE to consider standards for GSLs, and in both instances the criteria stated in the statute for consideration for standards includes consideration of sales of the subject lamps. Id. In the September 2019 Withdrawal Rule, DOE read the inclusion of sales consideration in both 42 U.S.C. 6295(i)(6)(A)(i) and 42 U.S.C. 6295( l )(4) as an indication that Congress intended the two rulemaking provisions to be exclusive of one another. Id.

In this NOPR, DOE is reconsidering whether the separate regulatory process under 42 U.S.C. 6295( l )(4) precludes these lamp types from becoming GSILs, and subsequently GSLs. The September 2019 Withdrawal Rule did not consider that other lamps potentially subject to standards as GSLs also have statutorily prescribed standards, namely, GSILs and medium base CFLs. See Section 321(a)(3) of the Energy Independence and Security Act of 2007 (Pub. L. 110-140; “EISA”);  7 42 U.S.C. 6295(bb). That lamps subject to statutory standards are also expressly GSLs subject to GSL standards indicates that coverage under more than one statutory scheme is not precluded under the statute.

Further, upon a review of how Congress has amended EPCA, DOE has tentatively concluded that standards for these exempt lamp types are not to be developed only in accordance with 42 U.S.C. 6295( l )(4)(A). Section 325( l )(4) of EPCA requires DOE to “prescribe an energy efficiency standard for rough service lamps, vibration service lamps, three-way incandescent lamps, 2,601-3,300 lumen general service incandescent lamps, and shatter-resistant lamps in accordance with this paragraph.” 42 U.S.C. 6295( l )(4)(A). Prior to 2012, that provision instead required DOE to prescribe standards for such lamps “ only in accordance with this paragraph.” 42 U.S.C. 6295( l )(4)(A) (2011) (emphasis added). In amendments under the American Energy Manufacturing Technical Corrections Act, Public Law 112-210, § 10(a)(8), 126 Stat. 1513, 1524 (2012) (“AEMTCA”), Congress removed the word “only,” signaling that DOE's obligation to consider discontinuing “the exemptions for certain incandescent bulbs” under 42 U.S.C. 6295(i)(6)(A)(i)(II) also applies to the five tracked lamps.

With regard to rough service lamps, vibration service lamps, three-way incandescent lamps, and shatter-resistant lamps, as presented in the January 2017 Final Rules, DOE tentatively concludes that such lamps have the potential for use in general lighting applications traditionally served by GSILs. DOE acknowledges that higher wattage three-way incandescent lamps may not be able to be used in all existing fixtures in which lamps currently defined as GSILs are used ( e.g., A19 shape lamps). However, the ability to serve as a lighting application traditionally served by GSILs is not limited by existing fixtures. As discussed, the fixtures used to serve general lighting applications may change over time, and therefore DOE considers whether a lamp can provide general illumination as a criterion for discontinuing an exemption. Regarding the shatter-resistant lamps, such lamps are capable of providing overall illumination despite the lower lumen output resulting from the shatter-resistant coating. DOE has also found that a 60 W shatter-resistant lamp is still a suitable replacement for a 40 W standard incandescent lamp. See 82 FR 7276, 7297. Shatter-resistant lamps are similar to rough service and vibration service lamps. Whereas rough service and vibration service lamps possess a filament strengthened with additional supports, shatter-resistant lamps possess a reinforced outer bulb to contain glass pieces in the event that the bulb breaks. As stated in the January 2017 Final Rules, for all three lamp types, the consumer may be under the impression that they are purchasing primarily a more durable product rather than a lamp with subpar performance. Id. Furthermore, as provided in the January 2017 Final Rules, for all three of these lamp types, LED versions inherently provide the consumer the desired functionality in the sense that LED lamps do not have metal filaments and typically do not use glass outer bulbs. Id.

For these reasons and the basis presented in the January 2017 Final Rules, DOE proposes to discontinue the exemptions for these products.

As discussed, the definition of “general service lamp” includes specific categories of lamps, along with “any other lamps that the Secretary determines are used to satisfy lighting applications traditionally served by general service incandescent lamps.” 42 U.S.C. 6291(30)(BB)(i). In the January 2017 Final Rules, DOE previously determined that any other lamps that are intended to serve in general lighting applications and have specific features would meet the statutory criterion of lamps used to satisfy lighting applications traditionally served by GSILs. 82 FR 7276, 7300.

Although DOE had determined that several types of lamps exempted from the statutory definition of GSL are used to satisfy lighting applications traditionally served by general service incandescent lamps and therefore should be classified as GSLs (82 FR 7276, 7300-7312), the September 2019 Withdrawal Rule limited consideration of such lamps to only candelabra base lamps. Then, with respect to candelabra base lamps, the September 2019 Withdrawal Rule concluded that, as a pure matter of law, a candelabra base lamp cannot be a GSIL because EPCA defines a GSIL, in part, as having a medium-screw base. 84 FR 46661, 46668-46669. The September 2019 Withdrawal Rule also suggested that data submitted by NEMA in response to the NOPR to withdraw the January 2017 Final Rules indicated that shipments of candelabra base incandescent lamps had been in a continuous decline since 2011 and there was no evidence of increasing shipments. 84 FR 46661, 46669. Because sales data is the one explicit factor Congress provided in determining whether exemptions for certain incandescent lamps should be maintained or discontinued in 42 U.S.C. 6295(i)(6)(A)(i)(II), DOE gave this manufacturer data considerable weight in the September 2019 Withdrawal Rule. 84 FR 46661, 46669.

The September 2019 Withdrawal Rule also stated that DOE was no longer using “convenient unregulated alternatives” as a basis upon which to discontinue exemptions for specialty lamp types. 84 FR 46661, 46668. DOE explained that this type of consideration was not explicitly provided in the statute and agreed with commenters that such consideration went beyond the authority granted DOE by Congress. 84 FR 46661, 46668-46669.

Upon further review, the arguments presented in the September 2019 Withdrawal Rule incorrectly describe the rationale for including candelabra base lamps as GSLs in the January 2017 Final Rules. The arguments address discontinuing an exemption from the GSIL definition; however, in the January 2017 Final Rules, candelabra base lamps were determined to be GSLs under the provision of the GSL definition that includes any other lamps that the Secretary determines are used to satisfy lighting applications traditionally served by general service incandescent lamps. 82 FR 7276, 7312; See also 42 U.S.C. 6291(30)(BB)(i)(IV). Candelabra base lamps are not covered under the definition of GSILs because they do not have a medium screw base ( See 42 U.S.C. 6291(30)(D)(i)(II)), but the January 2017 Final Rules did not consider candelabra base lamps to be GSILs. Instead, such lamps were covered as GSLs. 82 FR 7276, 7312.

DOE has preliminarily reverted to its position from the January 2017 Final Rules that relevant criteria for discontinuing an exemption for an incandescent lamp are whether the exemption encompasses lamps that can provide general illumination and whether the exempt lamps can functionally be ready substitutes for lamps already covered as GSLs. 82 FR 7276, 7288. It may be appropriate to discontinue an exemption even though current sales are relatively low, if technical characteristics of the exempted lamps make them likely to serve as ready substitutes for GSLs once GSL standards are in place. Further, for a lamp to satisfy a lighting application traditionally served by general service incandescent lamps, the lamp does not have to fit into an existing fixture served by a lamp currently defined as a GSL. As discussed, DOE has evaluated whether a lamp is capable of providing overall illumination. In the January 2017 Final Rules, DOE did not limit its consideration of an application traditionally served by GSIL to the ability to replace a lamp in a fixture currently used by a consumer that had been using a traditional incandescent lamp. 82 FR 7276, 7293. DOE noted in the January 2017 Final Rules, and reaffirms in this proposal, that lighting in homes that traditionally was provided by A shape lamps in floor and table fixtures is being provided in newer construction through reflector lamps in recessed lighting. Id. DOE expects that markets will shift in response to GSL standards, and would expect some substitution of fixtures to occur as part of substituting non-GSL lamps for GSLs.

While NEMA has cited declining shipments as a reason to not discontinue an exemption, declining shipments do not correlate to a decline in the demand for lighting in a particular application. NEMA has submitted data showing that GSIL shipments in 2018 were 17 percent of what they were in 2001. NEMA, No. 88 at p. 23. 8 However, DOE does not believe that this translates to an 83 percent decrease in demand for light in general lighting applications. It is more likely that consumers are switching to other products that serve in the same application. NEMA stated that it expects 71 percent of GSL sockets to be occupied by LED lamps and 19 percent to be occupied by CFLs by the end of 2021, increasing to 87 percent and 7 percent respectively by the end of 2023. NEMA, No. 88 at p. 4. 9 As lamps continue to be purchased in general lighting applications, the demand for light remains; thus, declining incandescent lamp shipments is not, on its own, an indication that the lamp is a specialty product or serves in a specialty application.

DOE has reviewed the definition of GSL as set forth in the January 2017 Final Rules and has preliminarily determined that the definition is consistent with the best reading of EPCA because it implements the objectives of the statute. DOE has considered all aspects of the GSL definition and has preliminarily identified the criteria pertinent to lamps that serve in general lighting applications and also preliminarily identified specialty products that should be exempt from the definition of GSL. Based on the discussion presented in this NOPR and that presented in the January 2017 Final Rules, DOE proposes a definition of GSL as set forth in the January 2017 Final Rules, which included candelabra base lamps and other lamps as GSLs based on the use of such lamps to satisfy lighting applications traditionally served by GSILs.

DOE is proposing to define “general service lamp” as a lamp intended to serve in general lighting applications and that has the following basic characteristics: (1) An ANSI base (with the exclusion of light fixtures, LED downlight retrofit kits, and exemptions for specific base types); (2) a lumen output of greater than or equal to 310 lumens and less than or equal to 3,300 lumens; (3) an ability to operate at or between 12 V, 24 V, 100 to 130 V, 220 to 240 V, or 277 V; and (4) no designation or label for use in non-general applications.

Regarding the fourth criteria, as in the January 2017 Final Rules, DOE proposes listing in the GSL definition each of the non-general applications identified or lamps used in such applications in order to clearly define the scope of the definition. Specifically, DOE proposes that “general service lamp” does not include: Appliance lamps; black light lamps; bug lamps; colored lamps; G shape lamps with a diameter of 5 inches or more as defined in ANSI C79.1-2002; general service fluorescent lamps; high intensity discharge lamps; infrared lamps; J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do not have Edison screw bases; lamps that have a wedge base or prefocus base; left-hand thread lamps; marine lamps; marine signal service lamps; mine service lamps; MR shape lamps that have a first number symbol equal to 16 (diameter equal to 2 inches) as defined in ANSI C79.1-2002, operate at 12 volts, and have a lumen output greater than or equal to 800; other fluorescent lamps; plant light lamps; R20 short lamps; reflector lamps that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1-2002, and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases; S shape or G shape lamps that have a first number symbol less than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as defined in ANSI C79.1-2002; sign service lamps; silver bowl lamps; showcase lamps; specialty MR lamps; T-shape lamps that have a first number symbol less than or equal to 8 (diameter less than or equal to 1 inch) as defined in ANSI C79.1-2002, nominal overall length less than 12 inches, and that are not compact fluorescent lamps; and traffic signal lamps. As discussed in the following section, the proposed definition of GSL does not maintain the existing exemption for IRLs.

In the January 2017 Final Rules, DOE found that IRLs are widely used for general illumination just as GSILs are. 82 FR 7322, 7325. DOE continued that, if EPCA mandated that IRLs continue being exempt from the definition of GSL, then they would present a convenient alternative product, subject to much less stringent standards than GSLs. Id. DOE further found that the statute did not unambiguously indicate that DOE must maintain the IRL exemption. Id. DOE acknowledged that the statute exempts IRLs from the definition of GSL and separately exempts “reflector lamps” from the definition of GSL because reflector lamps are a bulb shape excluded from the GSIL definition. Id. See also 42 U.S.C. 6291(30)(BB)(ii)(II); 42 U.S.C. 6291(30)(D)(ii)(XI). However, DOE found the reference to “reflector lamps” in the GSIL list of exempted lamps to be of a narrower scope than IRLs. 82 FR 7322, 7325-7326.

Based on its reading of EPCA and the listing of “reflector lamp” as a lamp exempted from the definition of GSIL (42 U.S.C. 6291(30)(D)(ii)(XI)) and the exemption of “incandescent reflector lamps” from the definition of GSL (42 U.S.C. 6291(30)(BB)(ii)(II)), DOE understands that it had two tasks regarding exemptions relevant for these lamps: With respect to “reflector lamps,” DOE's task is to assess whether as one of the relatively narrow twenty-two listed lamp types—the scope of which the statute does not make clear—these lamps have uses in general illumination, and whether sales data and other evidence indicate that such lamps are ready substitutes for lamps that are already included as GSLs; and for IRLs, DOE was required to analyze whether, in light of sales data and other evidence, such lamps are an important enough substitute for lamps already included as GSLs to warrant discontinuing their exemption. 82 FR 7322, 7326. DOE determined in both instances that the discontinuation of the exemption was warranted. 82 FR 7276, 7293; 82 FR 7322, 7329-7330.

In the September 2019 Withdrawal Rule, DOE stated that, upon additional review, DOE understands Congress's express statements in two distinct provisions that IRLs are not GSLs should be interpreted as meaning that Congress intended that DOE not consider IRLs to be GSLs. 84 FR 46661, 46667. DOE noted that it continues to have the authority to establish energy conservation standards applicable to IRLs under separate requirements set by Congress in 42 U.S.C. 6295(i)(3). Id.

Upon further review, DOE is reconsidering whether DOE has the authority to include IRLs as GSILs and/or GSLs. The September 2019 Withdrawal Rule concluded that because IRLs were twice excluded from the statute, once from the GSIL definition in 42 U.S.C. 6291(30)(D)(ii)(XI) and once from the GSL definition in 42 U.S.C. 6291(30)(BB)(ii)(II), that means Congress did not want the Secretary to include IRLs within the definition of GSL. 84 FR 46661, 46666. However, the authorization in EPCA for the Secretary to evaluate whether an exemption is to be continued does not limit such an evaluation to those lamps exempted by definition only once. Therefore, in this NOPR, DOE is reviewing its position in the September 2019 Withdrawal Rule that EPCA precludes consideration of the exemption for IRLs simply because they were exempted twice. 42 U.S.C. 6295(i)(6)(A)(i)(II) authorizes DOE to decide not to maintain IRLs as exempt and, as such, DOE proposes to amend the definitions of GSIL and GSL to discontinue the exemptions for these products. As also presented in the January 2017 Final Rules, DOE proposes to exempt from the definition of GSL reflector lamps that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1-2002 and that do not have E26/24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases because they do not and likely cannot have equivalent replacements using more efficient technology. 82 FR 7276, 7310. This is consistent with the definitions adopted in the January 2017 Final Rules.

In the January 2017 Final Rules, DOE set forth a series of definitions in support of the statutory use of the terms and the amended definitions for GSL and GSIL. Specifically, DOE set forth definitions for “Black light lamp,” “Bug lamp,” “Colored lamp,” “General service light-emitting diode (LED) lamp,” “General service organic lighting-emitting diode (OLED) lamp,” “Infrared lamp,” “Integrated lamp,” “LED Downlight Retrofit Kit,” “Lefthand thread lamp,” “Light fixture,” “Marine lamp,” “Marine signal service lamp,” “Mine service lamp,” “Nonintegrated lamp,” “Other fluorescent lamp,” “Pin base lamp,” “Plant light lamp,” “Reflector lamp,” “Showcase Lamp,” “Sign service lamp,” “Silver bowl lamp,” “Specialty MR lamp,” and “Traffic signal lamp.” DOE also revised the definition of “designed and marketed.” 82 FR 7276, 7321-7322.

In the September 2019 Withdrawal Rule, DOE withdrew the supporting definitions finding them no longer necessary given the withdrawal of the amended definitions of GSL and GSIL. 84 FR 46661, 46662.

In this NOPR, DOE is proposing supporting definitions for those terms as set forth in the January 2017 Final Rules. DOE notes that the terms for which definitions are proposed are used both in the statutory definitions of GSL and GSIL, and the proposed regulatory definitions for GSL and GSIL. As presented in the January 2017 Final Rules, DOE has based the proposed definitions for these supplementary terms on a review of the market and input from stakeholders. 82 FR 7276, 7312-7316. As the supporting definitions define statutory terms, DOE initially finds these definitions necessary even in the absence of amended GSL and GSIL definitions.

For the proposed changes to amend the definition of GSL and GSIL in this NOPR, DOE is proposing a 60-day effective date. If finalized, lamps included in these amended definitions would be subject to any applicable standards for GSLs and GSILs. While this notice does not propose any new or amended standards or address the applicability of the 45 lm/W backstop requirement, DOE is reconsidering its previous conclusion regarding the applicability of EPCA's 45 lm/W backstop provision and has issued an RFI to that effect. 86 FR 28001 (May 25, 2021). In that rulemaking, DOE will address application of standards for those lamps proposed in this NOPR to be GSLs or GSILs—including, if determined to be applicable, the implementation of the 45 lm/W backstop requirement—and, consequently, the dates of required compliance for GSLs and GSILs.

DOE requests comment on the effective date for the definitions proposed in this NOPR were such definitions to be made final.

The Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) waived Executive Order 12866 (“E.O.”) 12866, “Regulatory Planning and Review” review of this rule.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996) requires preparation of an initial regulatory flexibility analysis (“IRFA”) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. A regulatory flexibility analysis examines the impact of the rule on small entities and considers alternative ways of reducing negative effects. Also, as required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website ( https://energy.gov/gc/office-general-counsel ).

DOE reviewed the definitions of GSL, GSILs, and related terms proposed in this NOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. DOE notes that this proposed rule would merely define what constitutes a GSL and GSIL. Manufacturers of GSLs and GSILs are required to use DOE's test procedures to make representations and certify compliance with standards, if required. The test procedure rulemakings for CFLs, integrated LED lamps, and other GSLs addressed impacts on small businesses due to test procedure requirements. 81 FR 59386 (Aug. 29, 2016); 81 FR 43404 (July 1, 2016); 81 FR 72493 (Oct. 20, 2016). Further, as noted, DOE is considering EPCA's 45 lm/W backstop requirement for GSLs and has issued an RFI to that effect. 86 FR 28001. In that rulemaking, DOE plans to address the impact on small business manufacturers of GSLs and GSILs of implementing the backstop.

For this reason, DOE concludes and certifies that the proposed definitions would not have a significant economic impact on a substantial number of small entities, and the preparation of an IRFA is not warranted.

Manufacturers of GSLs must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for GSLs and GSILs, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment. 76 FR 12422 (Mar. 7, 2011); 80 FR 5099 (Jan. 30, 2015). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

DOE is analyzing this proposed regulation in accordance with the National Environmental Policy Act (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. 10 CFR part 1021, subpart D, appendix A5. DOE anticipates that this proposed rulemaking qualifies for categorical exclusion A5 because it is an interpretive rulemaking that does not change the environmental effect of the rule and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. DOE will complete its NEPA review before issuing the final rule.

E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. 42 U.S.C. 6297. Therefore, no further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, Section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding that Section 3(a) review, section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in Section 3(a) and Section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of E.O. 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, section 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. 2 U.S.C. 1532(a), (b). The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

This proposed rulemaking does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by the private sector. As a result, the analytical requirements of UMRA do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rulemaking would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Pursuant to E.O. 12630, “Govern- mental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has reviewed this NOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

DOE has tentatively concluded that this regulatory action, which proposes amended definitions for GSL and GSIL, is not a significant energy action because the proposed definitions are not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, DOE has not prepared a Statement of Energy Effects on this proposed rule.

Under Section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. 15 U.S.C. 788 (“FEAA”). Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, Section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition. This proposal to amend the definitions of GSL and GSIL does not propose the use of any commercial standards.

The proposed modifications to the definition of “general service lamp” and the associated supporting definitions reference the following commercial standards that are already incorporated by reference in 10 CFR 430.2:

(1) ANSI C78.20-2003, Revision of ANSI C78.20-1995 (“ANSI C78.20”), American National Standard for electric lamps—A, G, PS, and Similar Shapes with E26 Medium Screw Bases, approved October 30, 2003.

(2) ANSI C79.1-2002, American National Standard for Electric Lamps—Nomenclature for Glass Bulbs Intended for Use with Electric Lamps, approved September 16, 2002.

(3) CIE 13.3-1995 (“CIE 13.3”), Technical Report: Method of Measuring and Specifying Colour Rendering Properties of Light Sources, 1995, ISBN 3 900 734 57 7.

DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of Section 32(b) of the FEAA ( i.e., that they were developed in a manner that fully provides for public participation, comment, and review). DOE will consult with both the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to adopting a final rule.

The time and date of the webinar meeting are listed in the DATES section at the beginning of this document. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website: https://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=4 Participants are responsible for ensuring their systems are compatible with the webinar software.

Any person who has an interest in the topics addressed in this notice, or who is a representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Such persons may submit to ApplianceStandardsQuestions@ee.doe.gov. Persons who wish to speak should include with their request a computer file in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format that briefly describes the nature of their interest in this rulemaking and the topics they wish to discuss. Such persons should also provide a daytime telephone number where they can be reached.

DOE will designate a DOE official to preside at the webinar/public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar/public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. antitrust laws. After the webinar/public meeting and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.

The webinar/public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the webinar/public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.

At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the webinar/public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar/public meeting.

A transcript of the webinar/public meeting will be included in the docket, which can be viewed as described in the Docket section at the beginning of this proposed rulemaking. In addition, any person may buy a copy of the transcript from the transcribing reporter.

DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document.

Submitting comments via www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email. Comments and documents submitted via email also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. No telefacsimiles (“faxes”) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: one copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

The Secretary of Energy has approved publication of this notice of proposed rulemaking.

This document of the Department of Energy was signed on August 9, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set forth in the preamble, DOE proposes to amend part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:

The additions and revisions read as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0682; Project Identifier MCAI-2021-00474-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this proposed AD.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Sanjay Ralhan, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223; email sanjay.ralhan@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0108, dated April 20, 2021 (EASA AD 2021-0108) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, and -153N airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes. Model A320-215 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability. Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after December 9, 2020 must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

EASA AD 2021-0108 specifies that it requires a task (limitation) already required by EASA AD 2020-0067 (which corresponds to FAA AD 2020-22-16, Amendment 39-21312 (85 FR 70439, November 5, 2020) (AD 2020-22-16)) and invalidates (terminates) prior instructions for that task. This proposed AD would terminate the limitations of Task 262300-00001-1-C, as required by paragraph (i) of AD 2020-22-16, for airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before January 17, 2020 only.

This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is proposing this AD to address a safety-significant latent failure (that is not annunciated), which, in combination with one or more other specific failures or events, could result in a hazardous or catastrophic failure condition. See the MCAI for additional background information.

EASA AD 2021-0108 describes new or more restrictive airworthiness limitations for certification maintenance requirements. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA has evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2021-0108 described previously, as incorporated by reference. Any differences with EASA AD 2021-0108 are identified as exceptions in the regulatory text of this AD.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (k)(1) of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0108 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0108 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0108 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0108. Service information required by EASA AD 2021-0108 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0682 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in the AMOCs paragraph under “Other FAA Provisions.” This new format includes a “New Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

The FAA estimates that this proposed AD affects 1,728 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

(2) Would not affect intrastate aviation in Alaska, and

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0684; Project Identifier MCAI-2021-00194-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this proposed AD.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226; email tom.rodriguez@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0047, dated February 16, 2021 (EASA AD 2021-0047) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Dassault Aviation Model FALCON 7X, FALCON 900EX, and FALCON 2000EX airplanes.

This proposed AD was prompted by a report of an improper heat treatment process applied during the manufacturing of certain Decomatic titanium screws. The improper heat treatment process led to a hydrogen concentration rate in the material of the affected screws that was above the allowable limit. The FAA is proposing this AD to address failure of an affected screw installed in a critical location, possibly resulting in reduced structural integrity of the airplane. See the MCAI for additional background information.

EASA AD 2021-0047 describes procedures for replacement of certain Decomatic titanium screws (including an inspection of the bore dimension and corrective actions (oversizing or repair)). The EASA AD also restricts installation of certain Decomatic titanium screws. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0047 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0047 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0047 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0047 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0047. Service information required by EASA AD 2021-0047 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0684 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 30 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

(2) Would not affect intrastate aviation in Alaska, and

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

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

Title 31 CFR part 210 (Part 210) governs the use of the ACH Network by Federal agencies. The ACH Network is a nationwide electronic fund transfer system that provides for the inter-bank clearing of electronic credit and debit transactions and for the exchange of payment-related information among participating financial institutions.

The ACH Network facilitates payment transactions between several participants. These participants include the:

• Originator: A company or individual that agrees to initiate an ACH entry according to an arrangement with a Receiver.

• Originating Depository Financial Institution (ODFI): An institution that receives the payment instruction from the Originator and forwards the ACH entry to the ACH Operator.

• ACH Operator: A central clearing facility that receives entries from ODFIs, distributes the entries to appropriate Receiving Depository Financial Institutions, and performs settlement functions for the financial institutions.

• Receiving Depository Financial Institution (RDFI): An institution that receives entries from the ACH Operator and posts them to the account of its depositors (Receivers).

• Receiver: An organization or consumer that has authorized an Originator to initiate an ACH entry to the Receiver's account with the RDFI.

• Third-Party Service Provider: An entity other than the Originator, ODFI, or RDFI that performs any functions on behalf of the Originator, ODFI, or RDFI in connection with processing ACH entries. These functions may include, for example, creating ACH files on behalf of an Originator or ODFI, or acting as a sending point or receiving point on behalf of an ODFI or RDFI.

Rights and obligations among participants in the ACH Network are governed by Nacha's Operating Rules & Guidelines. The Operating Rules & Guidelines establish standards for sending and receiving ACH entries, provide specifications for the electronic transmission of transaction information, set forth the rights and obligations of the entities listed above when transmitting, receiving or returning ACH entries, and cover other related matters. The Operating Rules & Guidelines also provide guidance regarding best practices to ACH Network participants. There is an industry consensus that the Operating Rules & Guidelines provide a uniform set of standards for ACH transactions and that these standards enable efficient transaction processing.

Part 210 incorporates the Operating Rules & Guidelines by reference, with certain exceptions. From time to time, the Fiscal Service amends Part 210 to address changes that Nacha periodically makes to the Operating Rules & Guidelines or to revise the regulation as otherwise appropriate. Given their coverage across the payment system and to ensure consistent application to all ACH Network participants, the Federal Government generally adopts changes to the Operating Rules & Guidelines unless the changes address enforcement and compliance of the Operating Rules & Guidelines, would adversely impact government operations, or are irrelevant to Federal agency participation in the ACH Network.

Currently, Part 210 incorporates the 2019 Operating Rules & Guidelines, subject to certain exceptions. Nacha has adopted several changes since the publication of the 2019 Operating Rules & Guidelines, as reflected in the 2021 Operating Rules & Guidelines and supplements thereto. 1 We are proposing to incorporate in Part 210 most, but not all, of these changes.

We are requesting public comment on all the proposed amendments to Part 210.

Since the publication of the 2019 Operating Rules & Guidelines, Nacha published two versions of the Operating Rules & Guidelines, the 2020 Operating Rules & Guidelines and the 2021 Operating Rules & Guidelines. Below, we outline the major changes that were published in these updates.

The 2020 Operating Rules & Guidelines proposed several changes to the Operating Rules and Guidelines. These changes included raising the Same Day ACH dollar limit, differentiating the codes associated with certain return transactions, modifying data security requirements, clarifying fraud detection standards for WEB Debit transactions, and adding a new Same Day ACH processing window.

On March 31, 2021, Nacha approved a rule change to update the Same Day ACH per-transaction dollar limit from $100,000 to $1,000,000. At implementation, both Same Day ACH credits and Same Day ACH debits will be eligible for Same Day ACH processing up to $1,000,000 per transaction. Nacha's rule will become effective on March 18, 2022 for all non-Federal Government ACH Network participants.

We propose to adopt this rule, effective March 18, 2022. Acceptance of this rule will enable individuals and entities to make Same-Day ACH payments of up to $1,000,000 to the government and will enable Federal payments in the same amount. Failure to adopt this rule at the same time as other ACH Network participants may prevent clearance and processing of certain high-value transactions. For example, a taxpayer would be unable to make a tax payment exceeding $100,000 to the Federal Government via Same-Day ACH, even though it could initiate a similarly-sized Same-Day ACH payment to a private party. The failed transaction and resulting confusion could negatively impact both the taxpayer and the Federal Government.

The 2020 Operating Rules & Guidelines changed the usage of certain Nacha “Return Reason Codes,” which afforded financial institutions more insight into the reason why a transaction was returned.

Under the prior rules, Nacha used one Return Reason Code (the R10 code) as a catch-all to identify transactions that were returned for several underlying return reasons, including some for which a valid authorization existed. Under the revised Rule, Nacha re-purposed another Return Reason Code (the R11 code) to allow ACH network participants to more readily identify ACH transactions that are being returned due to an error, even though an authorization exists for the transaction ( e.g., if the authorization is for a different amount and/or date). The newly re-purposed code is used only to identify the return of a debit transaction in which there is an error, but for which there is an authorization. 2

The Operating Rules & Guidelines will treat returned transactions using either code (R10 and R11) as unauthorized. However, an Originator will be permitted to correct the underlying error in an R11 return (if possible). Subject to certain other requirements, the Originator may be able to resubmit the underlying ACH transaction without obtaining a new authorization. 3

We propose to adopt this change. Doing so will allow the Fiscal Service to remain consistent with industry practice, allowing for consistent operation across the ACH network. Moreover, using the R11 return code will provide greater insight into the reasons for the return of certain transactions.

The Fiscal Service previously adopted Nacha's updated fraud detection standards for WEB debit transactions. 4 Fiscal Service adopted this change with a delayed effective date of March 22, 2022. 5 The updated rule clarifies that Nacha requirements for a “commercially reasonable fraudulent transaction detection system” include the use of account validation services for WEB debit transactions. We propose to adopt the updated rule, which is non-controversial.

The 2021 Operating Rules & Guidelines implement several additional changes beyond those in the 2020 Operating Rules & Guidelines. These changes include, but are not limited to, clarifying certain portions of the enforcement provisions of the Operating Rules & Guidelines, implementing a new Same Day ACH processing window, implementing a second phase of Nacha's return code rule, establishing a time limit on certain warranty claims, and implementing Nacha's contact registry.

The 2021 Operating Rules & Guidelines defines an egregious violation within the context of rules enforcement.

We are proposing to not adopt this amendment. Under 31 CFR 210.2(d), the enforcement provisions of the Operating Rules & Guidelines are inapplicable to Federal agencies.

As discussed above, Nacha repurposed the R11 Return Reason code to further differentiate between certain returned debit ACH transactions. The 2021 Operating Rules & Guidelines implements a second phase of this rule change, which will apply Nacha's existing Unauthorized Entry Fee to ACH debit entries that are returned with the newly repurposed code. As noted above, these transactions are associated with an authorization of a debit transaction when there is an error or defect in the payment such that the entry does not conform to the terms of the authorization.

The Fiscal Service proposes to adopt this rule change. Adoption of this change maintains consistency with other ACH Network participants and creates additional incentives them to minimize the amount of unauthorized (or incorrectly authorized) ACH transactions.

Nacha's 2021 Operating Rules & Guidelines impose time limits on an RDFI's ability to make a claim against an ODFI's authorization warranty.

The Operating Rules & Guidelines require an ODFI to warrant that an ACH entry has been properly authorized by the Receiver. Under the prior rules, there was no time limit on the ODFI's warranties. Instead, these limits were determined by state statutes of limitations, which may vary.

The change sets forth different time periods, depending upon whether the transaction affects consumer and non-consumer accounts. This rule allows an RDFI to make a claim for one year from the settlement date of an entry to a non-consumer account. In the case of an entry to a consumer account, the RDFI may make a claim for two years from the entry's Settlement Date. In addition, the RDFI can make a claim for entries settling within 95 calendar days from the Settlement Date of the first unauthorized debit to a consumer account.

The Fiscal Service proposes to adopt this rule change. Adoption will reduce the number of claims for older transactions, although liability in some instances may be shifted to the Federal Government. On balance, the Federal Government may benefit from uniform time limits that allow the opportunity to assert warranty claims when applicable, while also establishing firm time limits for asserting and defending claims.

Nacha previously expanded its Data Security Requirements rule, which the Fiscal Service adopted, 6 but in the 2021 Operating Rules & Guidelines Nacha updated the effective date of part of this rule to be June 30, 2022. The rule expanded the existing ACH Security Framework to explicitly require large, non-financial institution Originators, Third-Party Service Providers, and Third-Party Senders to protect account numbers used in the initiation of ACH entries by rendering them unreadable when stored electronically.

The Fiscal Service proposes to adopt the new effective date. The Fiscal Service continues to support the expansion of existing security requirements to require large non-financial institution Originators to protect account numbers used to initiate ACH transactions by rendering them unreadable while stored electronically.

In April 2019, Nacha approved a rule creating an ACH contact registry. Under this rule, all ACH financial institutions are required to register contact information for their ACH operations and fraud and/or risk management areas. Financial institutions may voluntarily register contacts for additional personnel or departments at their discretion. The contact information is available to other registered ACH participating financial institutions, Payments Associations, ACH Operators, and Nacha to use in the event of ACH-related system outages, erroneous payments, duplicates, reversals, fraudulent payments and any other use within scope, such as identifying the proper contact for letters of indemnity. The contact information includes Routing and Transit Numbers (RTNs).

Nacha is implementing the ACH Contact Registry rule in two phases. Phase 1 became effective on July 1, 2020, the date on which the registration portal was opened for “Participating Depository Financial Institutions” to begin to submit and query contact information. Under Phase 2, Nacha's enforcement authority for the Rule becomes effective.

We are proposing to not adopt this amendment. Although, participation in the registry can be expected to provide some benefits to the industry, all Federal Government RTNs are controlled by Treasury through the Fiscal Service. Fiscal Service prohibits debit origination to all Treasury-controlled ACH RTNs. To mitigate the risk of inappropriate use of any Treasury RTNs, Treasury prohibits their publication. Joining the registry will unnecessarily expose Treasury RTNs to parties without a need to know that information. Moreover, under 31 CFR 210.2(d), the enforcement provisions of the Operating Rules & Guidelines are inapplicable to Federal agencies.

The 2021 Operating Rules & Guidelines also clarify the proper circumstances under which an ACH entry may be reversed. Currently, the Operating Rules & Guidelines define a limited number of permissible reasons for reversing entries; however, they do not explicitly address improper uses of reversals. The amendments to the Operating Rules & Guidelines will specifically state that the initiation of reversing entries or files for any reason other than those explicitly permissible under the Operating Rules & Guidelines is prohibited and define non-exclusive examples of circumstances in which the origination of Reversals is improper.

The reversals rule will also establish additional formatting requirements for reversals; limit the ability to modify the contents of other fields in a reversing entry to allow changes only to the extent necessary to facilitate proper processing of the reversal; explicitly permit an RDFI to return an improper reversal; and expand the permissible reasons for a Reversing Entry to include an error in the effective entry date.

The Fiscal Service proposes to adopt this rule. The rule will clarify the circumstances under which entries can be reversed and assist in the efficient processing of ACH transactions involving the Federal Government.

The 2021 Operating Rules & Guidelines also contain five amendments that Nacha characterizes as “Meaningful Modernization.” These five amendments are designed to improve and simplify the ACH user experience by facilitating the adoption of new technologies and channels for the authorization and initiation of ACH payments; reducing barriers to use of the ACH Network; providing clarity and increasing consistency around certain ACH authorization processes; and reducing certain administrative burdens related to ACH authorizations.

Specifically, the five rules will:

• Explicitly define the use of standing authorizations for consumer ACH debits;

• Define and allow for oral authorization of consumer ACH debits beyond telephone calls;

• Clarify and provide greater consistency of ACH authorization standards across payment initiation channels;

• Reduce the administrative burden of providing proof of authorization; and

• Better facilitate the use of electronic and oral Written Statements of Unauthorized Debit.

The current authorization framework for consumer ACH debits encompasses recurring and single payments. Recurring payments occur at regular intervals, with no additional action required by the consumer to initiate the payment and are for the same or a similar amount. A single entry is a one-time payment and can be between parties that have no previous relationship. ACH Originators that have, or want to use, a different model for ongoing commerce do not have specific rules for payments that are a hybrid, falling somewhere in between recurring and single entries.

This rule change will define a Standing Authorization as an advance authorization by a consumer of future debits at various intervals. The consumer would initiate the future debits by additional actions, which differs from the requirements for recurring ACH transactions. The rule will allow the use of different Standard Entry Class codes. By allowing standing authorizations, Nacha proposes to fill the gap between single and recurring payments and enable businesses and consumers to make more flexible payment arrangements for relationships that are ongoing in nature.

The Fiscal Service proposes adoption of the amendment. The Fiscal Service believes that the Standing Authorization rule may increase options for initiating ACH transactions with the Federal Government. Although the Federal Government is not required to engage in Standard Authorizations, adoption of this rule would allow agencies to adopt new payment processes that better fit their needs, and the need of their customers.

The current authorization language in the Operating Rules & Guidelines does not provide for oral authorizations of an ACH payment outside of a telephone call. Only the Telephone-Initiated Entry (TEL) Standard Entry Class Code has requirements to address the risks specific to an oral authorization.

The Oral Authorizations rule will define and allow Oral Authorizations as a valid authorization method for consumer debits distinct from a telephone call. Nacha asserts that enabling the broader use of Oral Authorizations will allow businesses to adopt ACH payments in transactional settings that make use of verbal interactions and voice-related technologies.

Under the rule, any oral authorization obtained via any channel will need to meet the requirement of an “oral authorization.” An oral authorization obtained over the internet that is not a telephone call also will need to meet the risk and security requirements that currently apply to internet-Initiated/Mobile (VEB) ACH entries. The rule will allow for standing authorizations to be obtained orally. In addition, the rule will allow for subsequent entries initiated under a standing authorization to be initiated through voice commands, instructions, or affirmations.

The Fiscal Service proposes adoption of the amendment. The Fiscal Service believes that the Oral Authorization rule may increase options for initiating efficient ACH transactions with the Federal Government.

The 2021 Operating Rules & Guidelines also include rules changes grouped as Other Authorization Issues, which cover other modifications and re-organizations of the general authorization rules for clarity, flexibility, and consistency.

The rule will re-organize the general authorization rules to better incorporate Standing Authorizations, Oral Authorizations, and other changes. In addition, the amended rule will explicitly state that authorization of any credit entry to a consumer account and any entry to a non-consumer account can be by any method allowed by law or regulation. Only consumer debit authorizations require a writing that is signed or similarly authenticated. The amended rule also will require all authorizations to meet the standards of “readily identifiable” and “clear and readily understandable terms,” which aim to reduce the incidence of erroneous transactions. Finally, the rule will apply the “minimum data element” standards that currently are only stated in the rules for Telephone-Initiated Entries to all consumer debit authorizations.

The Fiscal Service proposes adoption of the amendments. The Fiscal Service believes that these rule amendments will benefit the Federal Government and those who participate in ACH transactions with it. By adopting these amendments, the Federal Government will remain current with standard industry practice and benefit from the increased flexibility afforded by the authorization rules.

The 2021 Operating Rules & Guidelines also give an ACH Originator and Originator the option of accepting a return of a transaction in lieu of providing a copy of an authorization. Under the current Rules, if an RDFI requests proof of authorization of a transaction, an Originator is required to provide proof of authorization to its ODFI in such time that the ODFI can respond to the RDFI's request within ten banking days. Nacha reports that some ODFIs and Originators would prefer to agree to accept the return of the debit rather than expend the time and resources necessary to provide proof of authorization.

Nacha believes that the “Alternative to Proof of Authorization” rule will reduce an administrative burden on ODFIs and their Originators for providing proof of authorization in every instance in which it is requested by an RDFI. By allowing an alternative, the rule is intended to help reduce the costs and time needed to resolve some exceptions in which proof of authorization in requested. However, if the RDFI still needs proof of authorization, the ODFI and its Originator must provide the proof of authorization within ten days of the RDFI's subsequent request.

The Fiscal Service proposes adoption of these amendments. The Fiscal Service believes that these rule amendments may make certain ACH transaction processes more efficient. For example, in certain instances a Receiver of an ACH transaction may dispute the authorization. If the Federal Government determines that it is inefficient to provide the requested proof of authorization, the new rule will allow it to return the ACH instead of expending resources to locate and transmit the information to the RDFI and Receiver.

The 2021 Operating Rules & Guidelines changes the “Written Statement of Unauthorized Debit” rule, which makes an RDFI responsible for obtaining a consumer's Written Statement of Unauthorized Debit (WSUD) prior to returning a debit as unauthorized. However, the current Operating Rules & Guidelines do not explicitly address electronically or orally provided WSUDs. Instead, they explicitly allow electronic records and electronic signatures generally, which has resulted in confusion about the electronic or oral acceptance of WSUDs. Nacha reports that anecdotal evidence suggests that the significant majority of WSUDs are still being obtained via paper using a wet signature.

The Written Statement of Unauthorized Debit via Electronic or Oral Methods rule reduces an administrative burden on RDFIs and their customers. It clarifies and makes explicit that an RDFI may obtain a consumer's WSUD as an electronic record, and an RDFI may accept a consumer's electronic signature, regardless of its form or the method used to obtain it. These changes will emphasize that WSUDs may be obtained and signed electronically, which could include the same methods permissible for obtaining a consumer debit authorization.

The Fiscal Service proposes adoption of these amendments. The Fiscal Service believes that the amendments to this rule may increase the efficiency of ACH transactions involving the Federal Government by explicitly allowing electronic records and signatures to be used for written statements of unauthorized debits. This may allow ACH network participants to expedite the processing of allegedly fraudulent electronic transactions involving the Federal Government and other parties.

These amendments change several areas of the Operating Rules & Guidelines to address minor issues or correct errata. These changes have little-to-no impact on ACH participants and no material impact on the Federal Government's participation in the ACH network. NACHA's minor rule amendments became effective on various dates, according to the date of the Nacha errata correction or other message.

The Fiscal Service proposes to adopt these minor rule amendments.

In order to incorporate in Part 210 the Operating Rules & Guidelines changes that we are accepting, we are replacing references to the 2019 Rules & Guidelines with references to the 2021 Operating Rules & Guidelines.

We are proposing to amend the reference to NACHA—The Electronic Payments Association (NACHA) to simply refer to Nacha.

We are proposing to amend the definition of “applicable ACH Rules” at § 210.2(d) by replacing the reference to the “2019 NACHA Operating Rules and Guidelines” with a reference to the ACH Rules with an effective date on or before March 31, 2021, as published in “2021 Nacha Operating Rules & Guidelines” and supplements thereto, including the rule change adopted on March 31, 2021 that will increase the Same Day ACH limit to $1 million, effective March 18, 2022. In addition, we are proposing to expand the list of Operating Rules & Guidelines that are not incorporated by reference to include the Operating Rules & Guidelines governing the Participating DFI registry.

We are proposing to amend § 210.3(b) by replacing the references to the “2019 NACHA Operating Rules & Guidelines” with references to “Nacha's 2021 Operating Rules & Guidelines,” as amended through March 31, 2021.

We are proposing to amend paragraph (g) by replacing the reference to the “2019 NACHA Operating Rules and Guidelines” with a reference to the “2021 Nacha Operating Rules & Guidelines.”

In this NPRM, Fiscal Service is proposing to incorporate by reference the 2021 Operating Rules & Guidelines, including Supplement #1-2021, as amended through March 31, 2021. The Office of Federal Register (OFR) regulations require that agencies discuss in the preamble of a proposed rule ways that the materials the agency proposes to incorporate by reference are reasonably available to interested parties or how it worked to make those materials reasonably available to interested parties. In addition, the preamble of the proposed rule must summarize the material. 1 CFR 51.5(a). In accordance with OFR's requirements, the discussion in the Supplementary Information section summarizes the 2021 Operating Rules & Guidelines. Financial institutions utilizing the ACH Network are bound by the Operating Rules & Guidelines and have access to them in the course of their everyday business. The Operating Rules & Guidelines are available as a bound book or in online form from Nacha—The Electronic Payments Association, 2550 Wasser Terrace, Suite 400, Herndon, Virginia 20171, tel. 703-561-1100, info@nacha.org.

Executive Order 12866 requires each agency in the Executive branch to write regulations that are simple and easy to understand. We invite comment on how to make the proposed rule clearer. For example, you may wish to discuss: (1) Whether we have organized the material to suit your needs; (2) whether the requirements of the rule are clear; or (3) whether there is something else we could do to make the rule easier to understand.

The proposed rule does not meet the criteria for a “significant regulatory action” as defined in Executive Order 12866. Therefore, the regulatory review procedures contained therein do not apply.

It is hereby certified that the proposed rule will not have a significant economic impact on a substantial number of small entities. The proposed rule imposes on the Federal Government a number of changes that Nacha has already adopted and imposed on private sector entities that utilize the ACH Network. The proposed rule does not impose any additional burdens, costs or impacts on any private sector entities, including any small entities. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is not required.

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that the agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. We have determined that the proposed rule will not result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, we have not prepared a budgetary impact statement or specifically addressed any regulatory alternatives.

For the reasons set out in the preamble, the Fiscal Service proposes to amend 31 CFR part 210 as follows:

The revisions and addition read as follows:

On March 8, 2021, the Coast Guard was notified by the event sponsor of its intent to host Ironman Michigan in Frankfort, MI on September 12, 2021 from 5:00 a.m. to 11:00 a.m. The swim area had not yet be finalized. On July 23, 2021 the Coast Guard was notified of the finalized location of the swim portion of the event. The swim will begin near Frankfort Municipal Marina in Betsie Lake. The race course will be triangular shaped area enclosed by the following coordinates: 44°37.88′ N, 86°13.82′ W to 44°37.83′ N, 86°14.17′ W, to 44°37.54′ N, 86°13.67′ W then back to the starting point. The race course will be marked by buoys. The COTP has determined that potential hazards associated with the triathlon would be a safety concern for anyone within the safety zone that is not participating in the triathlon.

The purpose of this rulemaking is to ensure the safety of person, vessels and the navigable waters of Betsie Lake, MI. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The Coast Guard is issuing this temporary rule with an abridged notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not undertaking a thirty-day comment period with respect to this rule because the Coast Guard received details of the finalize swim area with insufficient time remaining to undergo a full thirty-day comment period. While it is impracticable to undergo a full thirty-day comment period and still protect the public from the hazards associated with these operations, the Coast Guard invites comments for the next fifteen days.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable for the same reason stated above—immediate action is needed to respond to the potential safety hazards associated with the triathlon.

The COTP is proposing to establish a safety zone from 5:00 a.m. through 11:00 a.m. on September 12, 2021. The safety zone will cover all waters of Betsie Lake in the vicinity of a triangular shaped race course near Frankfort Municipal Marina in Frankfort, MI. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the triathlon event. No vessels or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the characteristics of the safety zone. The safety zone created by this proposed rule will relatively small and is designed to minimize its impact on navigable waters. This proposed rule will prohibit entry into certain navigable waters of Betsie Lake in Frankfort, MI, and it is not anticipated to exceed 6 hours in duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting 2.5 hours that would prohibit entry within a relatively small portion of Sturgeon Bay. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under CAA section 111(b) for new sources of the same type, and the EPA has established emission guidelines for such existing sources. CAA section 129 directs the EPA to establish standards of performance for new sources (NSPS) and emissions guidelines (EG) for existing sources for each category of solid waste incinerator specified in CAA section 129. Under CAA section 129, NSPS and EG must contain numerical emissions limitations for particulate matter, opacity (as appropriate), sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans. While NSPS are directly applicable to new sources (affected facilities), EG for existing sources (designated facilities) are intended for states to use to develop a state plan to submit to the EPA. Once approved by the EPA, the state plan becomes federally enforceable. If a state does not submit an approvable state plan to the EPA, the EPA is responsible for developing, implementing, and enforcing a federal plan.

The regulations at 40 CFR part 60, subpart B, contain general provisions applicable to the adoption and submittal of state plans for controlling designated pollutants from designated facilities. Additionally, 40 CFR part 62, subpart A, provides the procedural framework by which the EPA will approve or disapprove such plans submitted by a state. When designated facilities are located in a state, the state must then develop and submit a plan for the control of the designated pollutant(s).

EPA promulgated the OSWI NSPS and EG on December 16, 2005, codified at 40 CFR part 60, subparts EEEE and FFFF, respectively (70 FR 74870, as amended at 71 FR 67806, November 24, 2006). Thus, states were required to submit plans for incinerators subject to the OSWI EG pursuant to sections 111(d) and 129 of the Act and 40 CFR part 60, subpart B. OSWI means very small municipal waste combustion unit or an institutional waste incineration unit (IWI) as defined under 40 CFR 60.3078. The designated facilities to which the current OSWI EG apply are OSWI and certain air curtain incinerators (ACI)  1 that commenced construction on or before December 9, 2004, and were not modified or reconstructed on or after June 16, 2006, as specified in 40 CFR 60.2991 and 60.2992, with limited exceptions as provided under 40 CFR 60.2993. The EPA proposed revisions to the OSWI EG and NSPS on August 31, 2020 (85 FR 54178). When the EPA finalizes the revisions to the OSWI EG, 2 each state (and air quality control jurisdiction) will need to submit a negative declaration or plan, as applicable, for those sources subject to the requirements of the final revised OSWI EG.

In order to fulfill obligations under CAA sections 111(d) and 129, the Texas Commission on Environmental Quality (TCEQ) submitted a state plan for the control of emissions from sources subject to the OSWI EG for the State of Texas on May 18, 2009. 3 The Texas OSWI plan implements and enforces the applicable provisions under the OSWI EG at 40 CFR part 60, subpart FFFF, and additionally meets the relevant requirements of the CAA section 111(d) implementing regulations at 40 CFR part 60, subpart B. It was subsequently discovered that 30 TAC § 113.2313(3)(B) is inconsistent with the delegation of authority provisions of Title 40 CFR 60.2990(6) and 60.3020(c)(2). As discussed in more detail in the next section, on June 11, 2021, TCEQ submitted a commitment letter to the EPA to address a discrepancy in the Texas OSWI plan. A copy of the Texas submittal and the commitment letter is included in the docket for this rulemaking (Docket No. EPA-R06-OAR-2021-0517). 4

The EPA has evaluated the Texas OSWI plan to determine whether the plan meets applicable requirements from the OSWI EG at 40 CFR part 60, subpart FFFF, and the CAA section 111(d) implementing regulations at 40 CFR part 60, subpart B. The EPA's detailed rationale and discussion on the Texas OSWI plan can be found in the Technical Support Document (TSD), located in the docket for this rulemaking.

Section 60.2983 of the OSWI EG addresses what must be included in state plan submittals. These requirements include:

(1) Inventory of affected incineration units, including those that have ceased operation but have not been dismantled.

(2) Inventory of emissions from affected incineration units in the State.

(3) Compliance schedules for each affected incineration unit.

(4) For each affected incineration unit, emission limitations, operator training and qualification requirements, a waste management plan, and operating parameter requirements that are at least as protective as the emission guidelines contained in this subpart.

(5) Stack testing, recordkeeping, and reporting requirements.

(6) Transcript of the public hearing on the State plan.

(7) Provision for State progress reports to EPA.

(8) Identification of enforceable State mechanisms that the State selected for implementing the emission guidelines of this subpart.

(9) Demonstration of the state's legal authority to carry out the sections 111(d) and 129 in the state plan.

Section 60.2983 of the OSWI EG also requires the state plan to demonstrate that it is at least as protective as the OSWI EG if it deviates from the format and content of the EG in 40 CFR part 60, subpart FFFF. The state plan must also follow the requirements of 40 CFR part 60, subpart B. The TSD goes into detail as to how the Texas OSWI plan meets these requirements. In evaluating the state's OSWI plan, the EPA considered the commitment letter submitted by the State. The letter addressed the component of the state plan that is inconsistent with the withheld authority provisions of the OSWI EG, specifically, the review of qualified operator accessibility status reports under 30 TAC § 113.2313(3)(B), which corresponds to 40 CFR 60.3020(c)(2). In order to address the discrepancy, the TCEQ committed to forward any notification, report, or request it receives pursuant to 30 TAC § 113.2313(3) to the EPA without taking any other action, including approving or disapproving any request.

The EPA is proposing to partially approve the Texas OSWI plan submitted by TCEQ and amend 40 CFR part 62 in accordance with the requirements under sections 111(d) and 129 of the CAA. The EPA is proposing to find that the Texas OSWI plan, with the exception of 30 TAC § 113.2313(3), is at least as protective as the Federal requirements provided under the OSWI EG, codified at 40 CFR part 60, subpart FFFF. Once approved by the EPA, the Texas OSWI plan will become federally enforceable.

Under the CAA, the Administrator is required to approve a CAA section 111(d)/129 submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60, subparts B and FFFF; and 40 CFR part 62, subpart A. Thus, in reviewing CAA section 111(d)/129 state plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act and implementing regulations. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This rule also does not have Tribal implications because it will not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This is a summary of the Commission's Notice of Inquiry (NOI), that is part of ET Docket No. 21-232, EA Docket No. 21-233, FCC 21-73, that was adopted and released June 17, 2021. The full text of this document is available by downloading the text from the Commission's website at: https://www.fcc.gov/document/equipment-authorization-and-competitive-bidding-supply-chain-nprm. When the FCC Headquarters reopens to the public, the full text of this document will also be available for public inspection and copying during regular business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

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

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.

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

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.

• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

The proceeding this NOI initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

The Commission adopted this Notice of Inquiry (NOI) in conjunction with a Notice of Proposed Rulemaking, ET Docket No. 21-232, EA Docket No. 21-233, FCC 21-73, in which it proposes direct action to limit the presence of untrusted equipment and services in U.S. networks. The Commission believes that ensuring continued U.S. leadership requires that the Commission also explore opportunities to spur trustworthy innovation for more secure equipment. In this NOI, the Commission seeks comment on how the Commission can leverage its equipment authorization program to encourage manufacturers who are building devices that will connect to U.S. networks to consider cybersecurity standards and guidelines.

The development and implementation of effective cybersecurity practices requires the continued cooperation and participation of all stakeholders. In this regard, the Commission observes that both the public and private sectors have come together to develop measures to protect the integrity of communications networks and guard against malicious or foreign intrusions that can compromise network services, steal proprietary information, and harm consumers. In particular, the National Institute of Standards and Technology (NIST) has worked with both industry and government to produce multiple cybersecurity frameworks and other forms of guidance that help protect the integrity of communications networks. Pursuant to Executive Order No. 13636, NIST began working with public and private stakeholders to develop a voluntary cybersecurity framework designed to reduce risks to critical infrastructure. Exec. Order No. 13636, 78 FR 11737 (Feb. 19, 2013; see Nat'l Inst. of Standards & Tech., Cybersecurity Framework: New to Framework (last updated Sept. 23, 2020), https://www.nist.gov/cyberframework/new-framework. This framework consists of “voluntary guidance, based on existing standards, guidelines, and practices for organizations to better manage and reduce cybersecurity risk.” See Nat'l Inst. of Standards & Tech., Cybersecurity Framework: New to Framework (last updated Sept. 23, 2020), https://www.nist.gov/cyberframework/new-framework. Originally issued in 2013, the NIST cybersecurity framework was updated in 2018 to clarify and refine certain aspects and better explain how entities should use the framework to improve their cybersecurity practices. See Nat'l Inst. of Standards & Tech., Framework for Improving Critical Infrastructure Cybersecurity: Version 1.1 (Apr. 16, 2018), https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf. In addition, among other organizations, the Federal Trade Commission has been active in cybersecurity matters for years, bringing multiple enforcement actions against firms for having poor cybersecurity practices and offering cybersecurity guidance for Internet of Things (IoT) devices as early as 2015. Fed. Trade Comm'n, Careful Connections: Building Security in the Internet of Things (Jan. 2015), https://www.bulkorder.ftc.gov/system/files/publications/pdf0199-carefulconnections-buildingsecurityinternetofthings.pdf. Further, industry trade groups, including CTIA-The Wireless Association, GSMA, the ioXt Alliance, and TIA have produced cybersecurity guidance applicable to various sectors of the communications industry. Non-profit standards bodies and think tanks have also produced cybersecurity guidance that could be useful to the communications industry. See, e.g., internet Soc'y, Internet of Things (IoT) Trust Framework v2.5 (May 22, 2019), https://www.internetsociety.org/resources/doc/2018/iot-trust-framework-v2-5/.

More recently, NIST has developed a Cybersecurity for IoT Program, which specifically “supports the development and application of standards, guidelines, and related tools to improve the cybersecurity of connected devices and the environments in which they are deployed.” Nat'l Inst. of Standards & Tech., NIST Cybersecurity for IoT Program (last updated Mar. 19, 2021), https://www.nist.gov/programs-projects/nist-cybersecurity-iot-program. Devices that operate as part of the IoT specifically raise concerns about security risks. For example, NTIA has recognized that connected devices in the IoT can extend the scope and scale of automated, distributed attacks.

This Cybersecurity for IoT program has produced multiple reports, but perhaps most notable is Internal Report 8259, released in May 2020. Nat'l Inst. of Standards & Tech., Foundational Cybersecurity Activities for IoT Device Manufacturers, Internal Report 8259 (May 2020) ( NIST IoT Report ), https://nvlpubs.nist.gov/nistpubs/ir/2020/NIST.IR.8259.pdf. This NIST IoT Report details activities that “can help manufacturers lessen the cybersecurity-related efforts needed by customers, which in turn can reduce the prevalence and severity of IoT device compromises and the attacks performed using compromised devices.” Id. The NIST IoT Report is voluntary guidance intended to help promote the best available practices for mitigating risks to IoT security. The report describes six recommended foundational cybersecurity activities that manufacturers should consider performing to improve the securability of the new IoT devices they make. They include identifying expected customers and users and defining expected use cases; researching customer cybersecurity needs and goals; determining how to address customer needs and goals; planning for adequate support of customer needs and goals; defining approaches for communicating to customers; and deciding what to communicate to customers and how to communicate it. These activities are intended to fit within a manufacturer's existing development process.

The Commission seeks comment on how it can leverage its equipment authorization program to help address the particular security risks that are associated with IoT devices. Should the Commission encourage manufacturers of IoT devices to follow the guidance in the NIST IoT Report ? If the Commission were to utilize the equipment authorization process to incentivize better cybersecurity practices, either for all devices or specifically for IoT devices, what form should such provisions take and how would such a program be structured most effectively? Should the FCC allow IoT manufacturers to voluntarily certify during the equipment authorization process that they have performed or plan to perform the activities described in the guidance? Are there other technologies or cybersecurity methods that mitigate security risks ( e.g., RF fingerprinting or some other method)? What, if anything, should the Commission be doing to encourage development and adoption of such technologies or methods? Which standards should be considered? Are there other incentives or considerations that could encourage manufacturers to build security into their products? Commenters should discuss the potential costs and benefits associated with their proposals or with the potential approaches discussed herein.

Even with broad adoption of industry best practices and standards, some equipment sold in the United States may lack appropriate security protections. What is the role of retailers in voluntarily limiting the sale of such equipment? How can retailers educate consumers about the importance of security protections for their devices? The Commission also seeks to understand developments in international standards-setting bodies. What is the status of international standards-setting that could be relevant to supply chain security, and what can the FCC do to encourage action by international standards-setting bodies and participation by American companies in their efforts?

The Commission observes that the Consumer Technology Association (CTA) published a white paper offering guidance for how government, industry, and consumers can all work together to promote better cybersecurity practices going forward. Consumer Tech. Ass'n, Smart Policy to Secure our Smart Future: How to Promote a Secure Internet of Things for Consumers (Mar. 2021) ( CTA Cybersecurity White Paper ), https://www.cta.tech/Resources/Newsroom/Media-Releases/2021/March/IOT-Device-Security-White-Paper-Release . In this white paper, CTA encourages public-private partnerships to develop and deploy risk-based approaches to cybersecurity, and argues that “neither the new Administration nor Congress should embrace rules, product labels or certification regimes for consumer IoT.” They claim that “[c]ybersecurity mandates, pre-market `approval,' and government certification or labeling of IoT devices are likely to require an enormous bureaucracy and have unintended consequences.” The Commission seeks comment on these views. Are there any gaps in the NIST IoT Report or other federal efforts to address IoT security that the Commission could help address?

The Commission recognizes that consideration of how to incentivize cybersecurity best practices through the equipment authorization process aligns closely with the recently issued Executive Order 14028, which directs NIST to work with the Federal Trade Commission and other agencies to develop a labeling program to identify specific IoT cybersecurity criteria and provide that information to consumers. Exec. Order No. 14028, Executive Order on Improving the Nation's Cybersecurity, 86 FR 26633, 26640-41, § 4(s)-(u) (May 17, 2021). While the Director of NIST has not yet identified the agencies that will participate in the forthcoming IoT cybersecurity labeling program, the Commission seeks comment on whether the Commission can support these efforts, either directly or indirectly. If so, how?

Adopting rules that take security into consideration in the equipment authorization process would serve the public interest by addressing significant national security risks that have been identified by this Commission in other proceedings, and by Congress and other federal agencies, and doing so would be consistent with the Commission's statutory “purpose of regulating interstate and foreign commerce in communication by wire and radio . . . for the purpose of the national defense [and] for the purpose of promoting safety of life and property through the use of wire and radio communications.” 47 U.S.C. 151. The Commission tentatively concludes that doing so is not specifically authorized by the Secure Networks Act itself, pursuant to which the Commission adopted the Covered List. However, the Commission has broad authority to adopt rules, not inconsistent with the Communications Act, “as may be necessary in the execution of its functions.” 47 U.S.C. 154(i). The Commission believes that, in order to ensure that the Commission's rules under the Secure Networks Act effectively preclude use of equipment on the Covered List by USF recipients as contemplated by Congress, it is necessary to rely on the Commission's established equipment authorization procedures to restrict further equipment authorization, and the importation and marketing, of such devices in the first instance. As discussed above, the Commission also relies on the equipment authorization process to implement other statutory duties, including the duty to promote efficient use of the radio spectrum, the duties under the National Environmental Policy Act to regulate human RF exposure, the Commission's duty to ensure that mobile handsets are compatible with hearing aids, and the duty to deny federal benefits to certain individuals who have been convicted multiple times of federal offenses related to trafficking in or possession of controlled substances. The Commission believes that these processes can and should also serve the purpose of fulfilling other Commission responsibilities under the Secure Networks Act, and the Commission seeks comment on that issue.

The Commission also believes that other authorities in the Communications Act of 1934, as amended, provide authority for the Commission to rely on for potential modifications to its rules and procedures governing equipment authorization. Since Congress added section 302 to the Act, the Commission's part 2 equipment authorization rules and processes have served to ensure that RF equipment marketed, sold, imported, and used in the United States complies with the applicable rules governing use of such equipment. See Equipment Authorization of RF Devices, Docket No. 19356, Report and Order, 39 FR 5912, 5912, para. 2 (1970). That section authorizes the Commission to, “consistent with the public interest, convenience, and necessity, make reasonable regulations . . . governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications.” 47 U.S.C. 302(a)(1). Regulations that the Commission adopts in implementing that authority “shall be applicable to the manufacture, import, sale, offer for sale, or shipment of such devices and . . . to the use of such devices.” 47 U.S.C. 302(a)(2). The authorization processes are primarily for the purpose of evaluating equipment's compliance with technical specifications intended to minimize the interference potential of devices that emit RF energy. As noted above, however, these rules are also designed to implement other statutory responsibilities. The Commission seeks comment on the scope of the authority to rely on such rules to effectuate other public interest responsibilities, including the Commission's section 303(e) authority to “[r]egulate the kind of apparatus to be used with respect to its external effects.” 47 U.S.C. 303(e).

Section 302(a) directs the Commission to make reasonable regulations consistent with the public interest governing the interference potential of devices; it would appear to be in the public interest not to approve devices capable of emitting RF energy in sufficient degree to cause harmful interference to radio communications if such equipment has been deemed, pursuant to law, to pose an unacceptable risk to the national security of the United States or the security and safety of United States persons. The Commission seeks comment on this tentative conclusion.

The Commission also seeks comment on a potential alternative basis for such security rules. The Communications Assistance for Law Enforcement Act (CALEA) includes security requirements that apply directly to equipment intended for use by providers of telecommunications services. 47 U.S.C. 1001-1010. Section 105 requires telecommunications carriers to ensure that the surveillance capabilities built into their networks “can be activated only in accordance with a court order or other lawful authorization and with the affirmative intervention of an individual officer or employee of the carrier acting in accordance with regulations prescribed by the Commission,” (47 U.S.C. 1004) and the Commission has concluded that its rule prohibiting the use of equipment produced or provided by any company posing a national security threat implements that provision. Supply Chain First Report and Order, 34 FCC Rcd at 11436-37, paras. 35-36. The Commission is required to prescribe rules necessary to implement CALEA's requirements. 47 U.S.C. 229.

As noted above, the Commission believes it has ancillary authority under section 4(i) of the Act to consider revisions to its part 2 rules as reasonably necessary to the effective enforcement of the Secure Networks Act. The Commission also tentatively concludes that such rules would be consistent with the Commission's specific statutorily mandated responsibilities under the Communications Act to make reasonable regulations consistent with the public interest governing the interference potential of electronic devices, to protect consumers through the oversight of common carriers under Title II of that Act, and to prescribe the nature of services to be rendered by radio licensees under section 303(b) of that Act. The Commission seeks comment on this reasoning as well. The Commission also seeks comment on any other sources of authority for the Commission to propose rules as a result of this Notice of Inquiry.

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), in ET Docket No. 21-232 and EA Docket No. 21-233; FCC 21-73, adopted and released June 17, 2021. The full text of this document is available by downloading the text from the Commission's website at: https://www.fcc.gov/document/equipment-authorization-and-competitive-bidding-supply-chain-nprm. When the FCC Headquarters reopens to the public, the full text of this document will also be available for public inspection and copying during regular business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554.

This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due October 18, 2021.

Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

OMB Control Number: 3060-0057.

Title: Application for Equipment Authorization, FCC Form 731.

Form No.: FCC Form 731.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit.

Number of Respondents and Responses: 11,305 respondents; 24,873 responses.

Estimated Time per Response: 8.11 hours (rounded).

Frequency of Response: On occasion and one-time reporting requirements; third-party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in the 47 U.S.C. 154(i), 301, 302, 303, 309(j), 312, and 316, and 47 CFR 1.411.

Total Annual Burden: 206,863 hours.

Total Annual Costs: $50,155,140.

Privacy Act Impact Assessment: Yes. The personally identifiable information (PII) in this information collection is covered by a Privacy Impact Assessment (PIA), Equipment Authorizations Records and Files Information System. It is posted at: https://www.fcc.gov/general/privacy-act-information#pia.

Nature and Extent of Confidentiality: Minimal exemption from the Freedom of Information Act (FOIA) under 5 U.S.C. 552(b)(4) and FCC rules under 47 CFR 0.457(d) is granted for trade secrets which may be submitted as attachments to the application FCC Form 731. No other assurances of confidentiality are provided to respondents.

Needs and Uses: The Commission will submit this revised information collection to the Office of Management and Budget (OMB) after this 60-day comment period to obtain the three-year clearance. The Commission is reporting program changes, increases to this information collection.

On June 17, 2021, the Commission adopted a Notice of Proposed Rulemaking and Notice of Inquiry in ET Docket. No. 21-232 and EA Docket No. 21-233, FCC 21-73, “ Protecting Against National Security Threats to the Communications Supply Chain through the Equipment Authorization Program.” Among other proposed rules intended to secure our nation's telecommunications networks, the Commission proposes to amend the 47 CFR part 2 rules related to equipment authorization to prohibit the authorization of communications equipment if the Commission determines that such equipment or service poses an unacceptable risk to the national security of the United States or the security and safety of United States persons. Accordingly, the Commission proposes to add § 2.911 to its rules, 47 CFR 2.911. The statutory authority for this collection of information is authorized under sections 4(i), 301, 302, 303, 309(j), 312, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303, 309(j), 312, and 316.

The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

In this Notice of Proposed Rulemaking (NPRM), the Commission proposes revisions to its equipment authorization rules and processes to prohibit authorization of any communications equipment on the list of equipment and services (Covered List) that the Commission maintains pursuant to the Secure and Trusted Communications Networks Act of 2019. Secure and Trusted Communications Networks Act of 2019, Public Law 116-124, 133 Stat. 158 (2020) (codified as amended at 47 U.S.C. 1601-1609) ( Secure Networks Act ). This prohibition would apply to “covered” equipment on the Covered List maintained and updated by the Commission's Public Safety and Homeland Security Bureau (PSHSB) at https://www.fcc.gov/supplychain/coveredlist. The Commission also seeks comment on whether the rules concerning equipment currently exempted from the equipment authorization requirement should be revised to ensure that any “covered” equipment cannot qualify for such exemption. In addition, the Commission seeks comment on whether to revoke any of the authorizations that have been previously granted for “covered” equipment on the Covered List, and if so, which ones and through what procedures. Finally, the Commission seeks comment on new certifications for applicants that wish to participate in Commission auctions that would further address the risks posed by companies that the Commission has designated as posing a national security threat to the integrity of communications networks and the communications supply chain.

The Covered List. On March 21, 2021, PSHSB published the Covered List identifying the covered equipment and services that specific, enumerated sources have deemed to pose an unacceptable risk to the national security of the United States or the security and safety of United States persons. “Public Safety and Homeland Security Bureau Announces Publication of the List of Equipment and Services Covered by Section 2 of the Secure Networks Act,” WC Docket No. 18-89, Public Notice, DA 21-309 (PSHSB, Mar. 12, 2021) ( Covered List Public Notice ); see 47 CFR 1.50002. Pursuant to 47 CFR 1.50002, this Covered List identified certain telecommunications equipment and services produced or provided by Huawei Technologies Company and ZTE Corporation, and video surveillance and telecommunications equipment and services produced or provided by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, and Dahua Technology Company—and their respective subsidiaries and/or affiliates. The Commission tasked PSHSB with ongoing responsibilities for monitoring the status of the determinations and periodically updating the Covered List to address changes as appropriate.

The equipment authorization program. The Commission's current rules provide two different approval procedures for equipment authorization—Certification of equipment and Supplier's Declaration of Conformity (SDoC). As a general matter, for a radiofrequency device (RF device) to be marketed or operated in the United States, it must have been authorized for use through one of these two processes. Some RF equipment has been exempted from the need for an equipment authorization. At this time, the Commission's current equipment authorization rules do not include specific provisions addressing the “covered” equipment on the Covered List.

Competitive bidding certifications. The Commission uses competitive bidding to determine which among multiple applicants with mutually exclusive applications for a license may file a full application for the license. Congress gave the Commission the authority to require such information and assurances from applicants to participate in competitive bidding as is necessary to demonstrate that their application is acceptable. Pursuant to this authority, the Commission has required each applicant to participate in competitive bidding to make various certifications.

In this NPRM, the Commission examines its rules relating to equipment authorization and participation in Commission auctions to help advance the Commission's goal of protecting national security and public safety. This proceeding builds on other actions the Commission recently has taken to protect and secure our nation's communications systems.

In other proceedings over the last three years, the Commission has taken several actions to prevent use of equipment and services that pose an unacceptable risk to our nation's communications networks. In June 2020, the Public Safety and Homeland Security Bureau (PSHSB) designated Huawei and ZTE as national security threats to the integrity of communications networks, prohibiting the use of Universal Service Fund (USF) support to purchase, obtain, maintain, improve, modify, or otherwise support any equipment or services produced or provided by Huawei and ZTE. See Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs—Huawei Designation, PS Docket No. 19-351, Order, 35 FCC Rcd 6604 (PSHSB 2020) ( Huawei Designation Order ); See Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs—ZTE Designation, PS Docket No. 19-352, Order, 35 FCC Rcd 6633 (PSHSB 2020) ( ZTE Designation Order ). Most recently, PSHSB, as required by the December 2020 Supply Chain Second Report and Order ( Supply Chain Second Report and Order, 35 FCC Rcd 14284), published the Covered List, which identifies “covered” equipment and services that pose an unacceptable risk to national security or to the security and safety of U.S. persons. Covered List Public Notice; see 47 CFR 1.50002. PSHSB will continue to update that list as appropriate. Although the Commission, through PSHSB, publishes and updates the Covered List, the equipment and services included on the list are identified by specific external sources enumerated in the Secure Networks Act. 47 CFR 1.50002(b)(1)(i)-(iv).

This Covered List identifies communications equipment and services that pose an unacceptable risk to the national security of the United States or the security and safety of United States persons. The Commission is required to include communications equipment and services on the list based exclusively on determinations made by Congress and by other U.S. government agencies. 47 U.S.C. 1601(c). Currently, the list includes equipment and services produced or provided by five entities: “Telecommunications equipment produced or provided by” Huawei Technologies Company or ZTE Corporation, or their respective subsidiaries and affiliates, “including telecommunications or video surveillance services produced or provided by such [entities] or using such equipment;” and “Video surveillance and telecommunications equipment produced or provided by” Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company, or their respective subsidiaries and affiliates, “to the extent it is used for the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, including telecommunications or video surveillance services produced or provided by such [entities] or using such equipment.” Covered List Public Notice at 3. (As noted in this Public Notice, where equipment or services on the list are identified by category, such category should be construed to include only equipment or services capable of the functions outlined in sections 2(b)(2)(A), (B), or (C) of the Secure Networks Act. 47 U.S.C. 1601(b)(2)(A)-(C)). Under the Secure Networks Act and the Commission's new rule, part 1, subpart DD, inclusion of equipment and services on the Covered List precludes the use of federal subsidy funds— e.g., funds from the Commission's Universal Service Programs—to obtain or maintain such equipment or services. 47 U.S.C. 1602; 47 CFR 1.50000 et seq.; see Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Declaratory Ruling and Second Further Notice of Proposed Rulemaking, 35 FCC Rcd 7821, 7825-28, paras. 16-22 (2020).

This NPRM seeks comment on various steps that the Commission could take in its equipment authorization program, as well as its competitive bidding program, to reduce threats posed to our nation's communications system. The Commission proposes revisions to its equipment authorization rules and procedures under part 2 to prohibit authorization of any “covered” equipment on the Covered List. It also seeks comment on whether to revise the rules on equipment currently exempted from the equipment authorization requirements to no longer permit this exemption for such “covered” equipment. In addition, it seeks comment on whether the Commission should revoke equipment authorizations of “covered” equipment, and if so under what conditions and procedures. Finally, we include questions concerning possible revisions to the Commission's competitive bidding procedures that could address certain concerns related to “covered” equipment and services. Notably, the Commission must “periodically update the list . . . to address changes in [external] determinations . . . [and] shall monitor the making and reversing of determinations . . . in order to place additional communications equipment or services on the list . . . or to remove communications equipment and services from such list.” Secure Networks Act § 2(d)(1)-(2); see also 47 CFR 1.50003. If one of the enumerated sources named in the Secure Networks Act modifies or deletes a determination, PSHSB will do the same and modify the Covered List accordingly. See 47 CFR 1.50003(b) (if a determination regarding covered communications equipment or service on the Covered List is reversed or modified, directing PSHSB to remove from or modify the entry of such equipment or service on the Covered List, except if any of the sources identified in 47 CFR 1.50002(b)(1)(i)-(iv) maintains a determination supporting inclusion of such equipment or service on the Covered List). The Commission seeks comment on how future updates to the Covered List should affect our proposals in this Notice.

In this Notice, the Commission proposes revisions to the Commission's equipment authorization rules and processes to prohibit authorization of any “covered” equipment on the Covered List. This prohibition would apply to “covered” equipment on the Covered List maintained and updated by PSHSB. The Commission also seeks comment on whether its rules concerning equipment currently exempted from the equipment authorization requirement should be revised to ensure that any “covered” equipment cannot qualify for such exemption. In addition, it seeks comment on whether it should revoke any of the authorizations that have been previously granted for “covered” equipment on the Covered List, and if so, which ones and through what procedures. Finally, it seeks comment on new certifications for applicants that wish to participate in Commission auctions that would further address the risks posed by companies that the Commission has designated as posing a national security threat to the integrity of communications networks and the communications supply chain.

The Commission's equipment authorization rules and procedures, set forth in 47 CFR part 2, include requirements and processes for equipment marketing, authorization, and importation. The Commission proposes to adopt a new provision, 47 CFR 2.903, as part of the “General Provisions” of subpart J, to provide general guidance regarding the prohibition on equipment authorizations with respect to communications equipment on the Covered List. In proposing this new rule section, the Commission seeks to establish a clear prohibition on authorization of any “covered” equipment in the Commission's equipment authorization processes regardless of the process to which that equipment is subject. The Commission seeks comment on this proposed rule. Is this rule sufficient to prohibit any such equipment on the Covered List from being authorized for use in the United States? What modifications or clarifications are needed to this proposed language to ensure that the rule is clear as to its scope and effect and attains results commensurate with its purpose to protect national security? Are there additional provisions that should be included here to more fully capture the scope of the Commission's proposed prohibition?

If the Commission were to adopt this proposal to revise the Commission's subpart J equipment authorization rules to prohibit any further authorization of “covered” equipment through the certification or SDoC processes, this decision would also serve to prohibit the marketing of such equipment that would now be prohibited from authorization under subpart I of the Commission's part 2 rules (Marketing of Radio-Frequency Devices) and importation of equipment under subpart K (Importation of Devices Capable of Causing Harmful Interference) of the Commission's part 2 rules. Section 2.803(b) of subpart I only permits persons to import or market RF devices that are subject to authorization under either the certification or SDoC process, as set forth in the Commission's subpart J rules, once those devices have been authorized, unless an exception applies. Similarly, the Commission's proposed revisions in subpart J also would serve to prohibit importing or marketing of “covered” equipment if it is subject to authorization through either the certification or SDoC process in subpart J and has not been authorized, per sections 2.1201(a) and 2.1204(a). The Commission seeks comment on the need to revise or provide clarification with regard to how the Commission's proposed prohibition of authorization of “covered” equipment affects the implementation of the Commission's rules in either subpart I or subpart K. Would the general prohibition the Commission proposes for equipment subject to certification and SDoC make any changes to subparts I or K unnecessary? If not, what changes are needed to the Commission rules in those subparts?

The Commission seeks comment on other revisions that it should make regarding equipment authorization either through the certification or SDoC rules and procedures. The Commission discusses and seeks comment on how the proposed rule should be implemented with respect to each of these processes, and whether other rule revisions or clarifications are appropriate. While the vast majority of RF devices are subject to either certification or an SDoC under the rules in subpart J, there is a limited category of devices that are exempt from these authorization processes. The Commission also seeks comment on how best to address this equipment.

Background. As described in brief above, under the Commission's equipment authorization rules, certain radiofrequency devices that have the greatest potential to cause harmful interference to radio services, must be processed through the equipment certification procedures. Certification generally is required for equipment that consists of radio transmitters as well as some unintentional radiators. Examples of equipment that requires certification include mobile phones, wireless provider base stations, point-to-point and point-to-multipoint microwave stations, land mobile, maritime and aviation radios, remote control transmitters, wireless medical telemetry transmitters, Wi-Fi access points and routers, home cable set-top boxes with Wi-Fi, and most wireless consumer equipment ( e.g., tablets, smartwatches and smart home automation devices). Applicants are required to file with an FCC-recognized Telecommunication Certification Body (TCB) applications containing specified information. See 47 CFR 2.907 (Certification), 2.911-926 (Applications), 2.960-964 (Telecommunication Certification Bodies), 2.1031-1060 (Certification). Each applicant is required to provide the TCB with all pertinent information as required by the Commission's rules. See, e.g., 47 CFR 2.911(d), 2.1033(a). These requirements generally specify the information necessary to document compliance with the testing requirements that broadly apply to RF devices used under authority of the Commission, including devices used under licensed radio services and devices used on an unlicensed basis. Additional application information is required to demonstrate compliance with specific technical requirements in particular service rules ( e.g., that antennas on certain unlicensed part 15 devices are not detachable (47 CFR 15.203) or that certain part 90 private land mobile transmitters meet required efficiency standards (47 CFR 90.203(j))) or other broadly applicable policy-related Commission requirements ( e.g., compliance with the Anti-Drug Abuse Act (47 CFR 1.2002; 2.911(d)(2))). By signing the application for equipment authorization (FCC Form 731), each applicant attests that the information provided in all statements and exhibits pertaining to that particular equipment are true and correct. The TCB then makes a determination as to whether to grant an equipment certification based on evaluation of the submitted documentation and test data. The Commission, through OET, oversees the certification application process, and provides guidance to applicants, TCBs, and test labs through its pre-approval guidance (including its knowledge database system (KDB)) with regard to required testing and other information associated with certification approval procedures and processes. Applications that involve new technology or for which there are no FCC-recognized test procedures require a TCB to obtain pre-approval guidance from the Commission before the application may be approved. 47 CFR 2.964. Once a TCB makes a determination, either on its own or after consultation with the Commission, to grant an equipment certification, information about that authorization is publicly announced “in a timely manner” through posting on the Commission-maintained Equipment Authorization System (EAS) database, and referenced via unique FCC identifier (FCC ID). Once this original certification is granted, the device is subject to rules that specify requirements: for modifying equipment, marketing under or changing FCC ID, and transferring ownership of an FCC ID.

The Commission's part 2 rules also include various provisions that help ensure that equipment certifications comply with Commission requirements. The Commission is authorized to dismiss or deny an application where that application is not in accordance with Commission requirements or the Commission is unable to make a finding that grant of the application would serve the public interest. The rules also provide that the TCB or Commission may set aside a certification within 30 days of grant if it determines that the equipment does not comply with necessary requirements. The rules also require the TCB to perform “post market surveillance” of equipment that has been certified, with guidance from OET, as may be appropriate. Revocation of an existing equipment authorization is also authorized for various reasons, including for false statements and representations in the application. And an authorization may be withdrawn if the Commission changes its technical standards.

Discussion. The Commission proposes certain additional revisions to the Commission's rules and processes regarding equipment certification. In proposing to revise the Commission equipment certification rules, the Commission goal is to design a process that efficiently and effectively prohibits authorization of “covered” equipment without delaying the authorization of innovative new equipment that benefits lives.

The Commission proposes revising the equipment certification application procedures to include a new provision in section 2.911 that would require applicants to provide a written and signed attestation that, as of the date of the filing of the application, the equipment for which the applicant seeks certification is not “covered” equipment on the Covered List. Specifically, any applicant for certification would attest that no equipment (including component part) is comprised of any “covered” equipment, as identified on the current published list of “covered” equipment. This new provision also would cross-reference section 1.50002 of the Commission's rules that pertain to the Covered List. The Commission seeks comment on this proposal. The Commission also invites comment on particular language that should be included in this attestation. For instance, to what extent should the Commission consider basing this attestation language on the certifications that providers of advanced communications services must complete to receive a Federal subsidy made available through a program administered by the Commission that provides funds to be used for the capital expenditures necessary for the provision of advanced communications services? Are there additional compliance measures beyond the attestation that the Commission should consider? Should the applicant have an ongoing duty during the pendency of the application to monitor the list of covered equipment and provide notice to the TCB or the Commission if, subsequent to the initial filing of the application or at the time a grant of certification, the equipment or a component part had become newly listed as “covered” equipment in an updated Covered List?

Section 2.1033 discusses information that must be included in the application. The Commission seeks comment on whether there are revisions that the Commission should adopt in this rule provision that would further clarify the Commission proposals regarding prohibition of the certification of any “covered” equipment. What information may be pertinent to assist the TCBs and the Commission in ensuring that applications do not seek certification of “covered” equipment? Should the Commission require that the applicant provide certain information that would help establish that the equipment is not “covered” equipment to assist TCBs and the Commission in making determinations about whether to grant the application? For example, the Commission currently requires applicants to file block diagrams or schematic diagrams of their devices. 47 CFR 1.50002 (Covered List). Should the Commission also require a parts list noting the manufacturer of each part? If the Commission were to adopt such a requirement, should it apply to all or only certain components? Which ones? How much additional burden, if any, would this place on applicants as compared to the current level of effort needed to prepare an equipment certification application?

The Commission proposes to direct the Office of Engineering and Technology (OET) to develop guidance for use by interested parties, including applicants and TCBs, regarding the Commission's proposed prohibition on certification of “covered” equipment. In particular, the Commission proposes to direct PSHSB, the Wireline Competition Bureau (WCB), the Wireless Telecommunications Bureau, the International Bureau, and the Enforcement Bureau to assist OET in developing pre-approval guidance that provides the necessary guidance that TCBs can use and should follow in implementing the proposed prohibition. PSHSB, which is tasked with publication of the Covered List, and has significant responsibilities and expertise regarding ensuring that the nation's public safety communications networks are secure, can lend important assistance by collaborating with OET to provide such guidance. The Commission seeks comment on this proposal. The Commission also seeks comment on whether the current pre-approval guidance rule (or the use of KDBs) should be revised or clarified consistent with the Commission goals in this proceeding.

As the Commission has noted, following a TCB's grant of certification, the Commission will post information on that grant “in a timely manner” on the Commission-maintained public EAS database. As the Commission has also noted, the TCB or Commission may set aside a grant of certification within 30 days of the grant date if it is determined that such authorization does not comply with applicable requirements or is not in the public interest. To what extent should interested parties, whether the public or government entities ( e.g., other expert agencies) be invited to help inform the Commission as to whether particular equipment inadvertently received a grant by the TCB and is in fact (or might be) “covered” equipment such that the grant should be set aside? Should the Commission consider adopting any new procedures for gathering and considering information on potentially relevant concerns that the initial grant is not in the public interest and should be set aside? Should such procedures be limited to certain parties ( e.g., expert agencies), or certain minimal showings required by those that seek to raise questions about the grant?

Section 2.962(g) of the Commission's current rules expressly provides for “post-market surveillance” activities with respect to products that have been certified. The Commission proposes to direct OET, in exercising its delegated authority, to provide TCBs with guidance on the kinds of post-market surveillance that should be conducted to help ensure that no equipment that subsequently has been authorized includes “covered” equipment that has not been authorized. Here, the Commission seeks comment on whether revisions or clarifications to the post-market surveillance requirements should be adopted. Under existing rules, each TCB is required to conduct type testing of samples of product types that it has certified. OET has delegated authority to develop procedures that TCBs will use for performing such post-market surveillance, including the responsibility for publishing a document on the post-market surveillance requirements that will provide specific information such as the numbers and types of samples the TCBs must test. OET may also request that a grantee of equipment certification submit a sample directly to the TCB that performed the original certification for its evaluation. TCBs also may request samples directly from the grantee. If in this post-market surveillance, the TCB determines that the product fails to comply with the technical regulation for that product, the TCB then notifies the grantee and the grantee must then describe actions taken to the correct the situation. The TCB provides a report of these actions to the Commission within 30 days.

The Commission also seeks comment on how the rules should be implemented, or revised or clarified, to ensure that equipment users will not make modifications to existing equipment that would involve replacing equipment (in whole or part) with “covered” equipment. Should, for instance, the Commission revise or clarify its section 2.932 rules regarding modifications or the section 2.1043 provisions concerning “permissive changes,” to promote the Commission goals in this proceeding? The Commission also notes that section 2.929 of the equipment authorization rules includes provisions regarding changes in the name, address, ownership, or control of the grantee of an equipment authorization. An equipment authorization may not be assigned, exchanged, or in any other way transferred to a second party, except as provided in this section. Should the Commission consider any revisions or clarifications about how these provisions apply in light of the Commission proposals regarding prohibition on authorization of “covered” equipment? For example, should the Commission prohibit the ownership or control of the certification for any equipment on the Covered List from being assigned, exchanged, or transferred to another party?

Under the Commission's part 2 rules concerning equipment authorization, various provisions are included that help ensure that applicants and TCBs comply with their responsibilities related to the Commission's equipment authorization procedures set forth in part 2 subpart J. The Commission notes, for instance, that pursuant to section 2.911(d)(1), applicants must provide a written and signed certification to the TCB that all statements in its request for equipment authorization are true and correct to the best of its knowledge and belief. TCBs, which are subject to the accreditation process, must comply with all applicable responsibilities set forth in the Commission part 2 rules for TCBs, and if the Commission were to adopt the proposal, would be obligated to prohibit the certification of any “covered” equipment. In reviewing the applications, TCBs would be required to dismiss any application should they become aware that an applicant has falsely asserted that its equipment (or components of the equipment) is not “covered” equipment. The Commission seeks comment on the implementation of these rules in the context of prohibiting certification of “covered” equipment, and any revisions or clarifications that may be appropriate to ensure that from this point forward applicants and TCBs comply with the proposed prohibition on authorization of “covered” equipment. Should the Commission's existing rules or procedures concerning ensuring compliance be enhanced with respect to applicants that intentionally attempt to circumvent the rules or TCBs that repeatedly fail to meet their responsibilities to comply with the Commission proposed prohibition?

The Commission seeks comment on revisions that could better ensure that applicants comply with the proposed requirements. Under the Commission's current equipment certification rules, the grantee of the certification is responsible for compliance of the equipment with the applicable requirements as the “responsible party,” as set forth in section 2.909(a). In 2017, the Commission revised the rules applicable to equipment authorized through the SDoC process (discussed below) to require that the parties responsible under the SDoC rules for compliance of equipment authorized under those provisions must be located within the United States. 47 CFR 2.909(b); 2.1077(a)(3). Many certified devices are also manufactured outside of the United States, and there may be no party within the country other than the importer that the Commission could readily contact if the equipment is not compliant with the Commission's requirements. Accordingly, the Commission proposes adopting the same requirement previously adopted with regard to responsible parties in the SDoC process with regard to responsible parties associated with equipment authorized through the equipment certification process. The Commission seeks comment. Relatedly, the Commission has encountered difficulties in achieving service of process for enforcement matters involving foreign-based equipment manufacturers. Should the Commission also require that the applicant for certification of equipment include a party and/or an agent for service of process that must be located in the United States? How much additional burden, if any, would these requirements place on applicants as compared to the current level of effort needed to prepare an equipment certification application? Should the Commission impose a similar requirement on existing equipment certification grantees? If so, how would the Commission do so? If not, how should the Commission address the difficulty in obtaining service of process on certain foreign-based equipment manufacturers?

As discussed above, PSHSB will periodically publish updates to identify the “covered” equipment and services that are on the Covered List. Under the proposals, the Commission accordingly directs that OET expeditiously take all the appropriate steps ( e.g., updating as necessary the precise certification that applicants must make that no newly identified “covered” equipment is associated with the application, as well as updating any pre-approval guidance, KDB, or other guidance) to reflect those updates, consistent with the rules and procedures that the Commission ultimately adopts regarding the certification rules in this proceeding. The Commission invites comment on appropriate means for OET to include updates of the “covered” equipment in an expeditious fashion in ways that best ensure that applicants, TCBs, and other interested parties will comply with the prohibitions concerning this updated identification of “covered” equipment.

Finally, the Commission seeks comment on whether there are other rule revisions or clarifications to the equipment certification rules and processes that the Commission should make consistent with the goals to prohibit authorization of “covered” equipment. Commenters should explain their suggestions in sufficient detail, including the reasoning behind the suggestions and associated issues ( e.g., implementation). While the proposed prohibition would be reflected in the Commission's rules and the engagement with TCBs in ensuring compliance, the Commission also seeks comment on any other types of action or activity ( e.g., outreach and education) that would be helpful to ensure that all parties potentially affected by these changes understand the changes and will comply the prohibition associated with “covered” equipment.

Background. The Supplier's Declaration of Conformity (SDoC) process is available for many types of equipment that have less potential to cause RF interference. Under the Commission rules, the types of equipment that may be processed pursuant to the SDoC procedures include fixed microwave transmitters ( e.g., point-to-point or multipoint transmitter links as well as some links used by carriers and cable operators) authorized under part 101, broadcast TV transmitters authorized under parts 73 and 74, certain ship earth station transmitters authorized under part 80 (Maritime), some emergency locator transmitters authorized under part 87 (Aviation), and private land mobile radio services equipment and equipment associated with special services such as global maritime distress and safety system, aircraft locating beacons, ocean buoys), certain unlicensed equipment ( e.g., business routers, firewalls, internet routers, internet appliances, wired surveillance cameras, business servers, workstations, laptops, almost all enterprise network equipment, computers, alarm clocks) that includes digital circuitry (but no radio transmitters) authorized under part 15, certain ISM equipment ( e.g., those that use RF energy for heating or producing work) authorized under part 18. The SDoC process differs significantly from the certification process for equipment authorizations, and relies on determinations about the equipment made by the party responsible for compliance (“responsible party” as defined in the rules) as to whether the equipment “conforms” with the Commission's requirements. Using the more streamlined SDoC process for the equipment authorization is “optional” insofar as the responsible party may choose to apply for equipment certification through the equipment certification process even if SDoC is acceptable under the Commission rules.

In the SDoC process, the responsible party makes the necessary measurements and completes other procedures found acceptable to the Commission to ensure that the particular equipment complies with the appropriate technical standards for that device. The information provided with devices subject to SDoC must include a compliance statement that lists a U.S.-based responsible party. As set forth in the rules, the responsible party for equipment subject to the SDoC process could include the equipment manufacturer, the assembler (if the equipment is assembled from individual component parts and the resulting system is subject to authorization), or the importer (if the equipment by itself or the assembled system is subject to authorization), and could also include retailers and parties performing modification under certain circumstances. 47 CFR 2.909(b)(1)-(2); 47 CFR 2.909(b)(3)-(4). The SDoC signifies that the responsible party has determined that the equipment has been shown to comply with the applicable technical standards. Given the streamlined nature of this particular process, responsible parties are not typically required to submit to the Commission an equipment sample or representative data demonstrating compliance. Also, while the Commission rules require that the equipment authorized under the SDoC procedure must include a unique identifier, the equipment is not listed in a Commission equipment authorization database, they are required to retain records on the equipment that demonstrate the equipment's compliance with the Commission's applicable requirements for that equipment. 47 CFR 2.1074; 47 CFR 2.938. The Commission can specifically request that the responsible parties provide such information on particular equipment to the Commission. 47 CFR 2.906(a); 2.945(b)(1).

Discussion. The Commission proposes that any equipment produced or provided by any of the entities (or their respective subsidiaries or affiliates) that produce or provide “covered” equipment, as specified on the Covered List, can no longer be authorized pursuant to the Commission's SDoC processes, and the equipment of any of these entities would have to be processed pursuant to the Commission's certification rules and processes as proposed above. Accordingly, responsible parties would be prohibited altogether from using the SDoC process with respect to any equipment produced or provided, in whole or part, by these entities (or their respective subsidiaries or affiliates), and such equipment would be prohibited from utilizing the SDoC process. That is not to say that all equipment produced or provided by these entities currently subject to the SDoC process would be prohibited; as the Commission discussed above, under the current rules, responsible parties always have the option of seeking equipment authorization through the Commission's equipment certification procedures. Under the Commission's proposed rules, responsible parties would now be required to use the certification procedures for any equipment produced or provided by these entities, as the option of using the SDoC processes would no longer be available. This proposal will help ensure consistent application of the Commission's proposed prohibition on further equipment authorization of any “covered” equipment by requiring use of only one process, which includes the Commission's more active oversight and proactive guidance when working directly with TCBs prior to any equipment authorization in the first place, and in guiding appropriate post-market surveillance after any equipment authorization. The Commission finds this approach consistent with the public interest.

The Commission seeks comment on the specific information that must be included in the SDoC compliance statement that will ensure that responsible parties do not use the SDoC process for “covered” equipment. This compliance statement would need to be sufficiently complete to require a responsible party to exercise necessary diligence with respect to the equipment that it is subjecting to the SDoC process that will ensure that it is attesting, in clear terms, that the equipment (or any component part thereof) is not produced or provided by any entity that has produced or provided “covered” equipment on the Covered List. This compliance statement should be crafted in such a manner as to assist responsible parties in identifying equipment that can no longer be processed through the SDoC process while also ensuring that responsible parties are held accountable, by their compliance statement, for any misrepresentations or violation of the prohibition that the Commission is proposing. The Commission notes that current rules require that the responsible party be located within the United States. 47 CFR 2.1077(a)(3). As discussed above regarding equipment subject to the certification process, should the Commission also require that the compliance statement include the name of a U.S. agent for service of process (if different from the responsible party)?

What steps should the Commission take to help inform responsible parties that use the SDoC process of this proposed prohibition, as well as the requirement that any equipment (including component parts) produced or provided by entities (and their subsidiaries and affiliates) that produce or provide “covered” equipment must be subject to the equipment certification process? The Commission notes that the rules allow many entities to take on the role of a responsible party under the part 2 rules, including retailers and parties performing modifications to equipment. The Commission seeks comment on how best to ensure that all responsible parties that use the SDoC processes to enable importing or marketing of equipment in the United States will understand and comply with the Commission's proposed revisions with respect to equipment produced or provided by entities that produce or provide “covered” equipment on the Covered List. What types of actions or activities ( e.g., outreach and education) to equipment manufacturers, assemblers, importers, retailers, parties performing modification under certain circumstances, and others that serve as responsible parties and use the SDoC process regarding particular equipment would be advised and most helpful? Should the Commission impose a similar requirement with respect to existing authorizations obtained through the SDoC process? If so, how would the Commission do so? If not, how should the Commission address the difficulty of obtaining service of process on certain foreign-based equipment manufacturers?

As noted above, the Commission can specifically request that the responsible parties provide information on any equipment to the Commission that has been authorized through the SDoC process. Under the Commission's proposal, in an effort to ensure that responsible parties are complying with the prohibition, the Commission would exercise its equipment authorization oversight, as appropriate, in requesting that the responsible parties provide information— e.g., an equipment sample, representative data demonstrating compliance, and the compliance statement itself—regarding particular equipment to the Commission. The Commission seeks comment on what kinds of situations in which such requests might be appropriate. What kinds of information might inform the Commission's consideration as to whether any equipment may have been inappropriately processed through the SDoC process, thus triggering the Commission's request for information from the responsible party to make sure that no violation of the Commission's prohibition has occurred?

As the Commission has discussed, PSHSB will periodically publish updates to identify the “covered” equipment on the Covered List. As with the equipment certification proposals above, the Commission would direct that OET expeditiously take all the appropriate steps ( e.g., updating as necessary the information that SDoC applicants must make to establish that no newly identified “covered” equipment is associated with the application to reflect those updates), consistent with the rules and procedures that the Commission ultimately adopts regarding the SDoC rules in this proceeding. The Commission invites comment on appropriate means for OET to include updates of the “covered” equipment in an expeditious fashion in ways that best ensure that applicants, responsible parties, and other interested parties will comply with the prohibitions that the Commission has proposed.

Finally, the Commission seeks comment on whether there are other rule revisions or clarifications to the SDoC rules and processes that the Commission should make consistent with the goals to prohibit authorization of “covered” equipment. Commenters should explain their suggestions in sufficient detail, including the reasoning behind the suggestions and associated issues ( e.g., implementation).

Adopting rules that take security into consideration in the equipment authorization process would serve the public interest by addressing significant national security risks that have been identified by this Commission in other proceedings, and by Congress and other federal agencies, and doing so would be consistent with the Commission's statutory “purpose of regulating interstate and foreign commerce in communication by wire and radio . . . for the purpose of the national defense [and] for the purpose of promoting safety of life and property through the use of wire and radio communications.” 47 U.S.C. 151. The Commission tentatively concludes that doing so is not specifically authorized by the Secure Networks Act itself, pursuant to which the Commission adopted the Covered List. However, the Commission has broad authority to adopt rules, not inconsistent with the Communications Act, “as may be necessary in the execution of its functions.” 47 U.S.C. 154(i). The Commission believes that, in order to ensure that the Commission's rules under the Secure Networks Act effectively preclude use of equipment on the Covered List by USF recipients as contemplated by Congress, it is necessary to rely on the Commission's established equipment authorization procedures to restrict further equipment authorization, and the importation and marketing, of such devices in the first instance. As discussed above, the Commission also relies on the equipment authorization process to implement other statutory duties, including the duty to promote efficient use of the radio spectrum, the duties under the National Environmental Policy Act to regulate human RF exposure, the Commission's duty to ensure that mobile handsets are compatible with hearing aids, and the duty to deny federal benefits to certain individuals who have been convicted multiple times of federal offenses related to trafficking in or possession of controlled substances. The Commission believes that these processes can and should also serve the purpose of fulfilling other Commission responsibilities under the Secure Networks Act, and the Commission seeks comment on that issue.

The Commission also believes that other authorities in the Communications Act of 1934, as amended, provide authority for the Commission to rely on for the proposed modifications to its rules and procedures governing equipment authorization. Since Congress added section 302 to the Act, the Commission's part 2 equipment authorization rules and processes have served to ensure that RF equipment marketed, sold, imported, and used in the United States complies with the applicable rules governing use of such equipment. See Equipment Authorization of RF Devices, Docket No. 19356, Report and Order, 39 FR 5912, 5912, para. 2 (1970). That section authorizes the Commission to, “consistent with the public interest, convenience, and necessity, make reasonable regulations . . . governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications.” 47 U.S.C. 302(a)(1). Regulations that the Commission adopts in implementing that authority “shall be applicable to the manufacture, import, sale, offer for sale, or shipment of such devices and . . . to the use of such devices.” 47 U.S.C. 302(a)(2). The authorization processes are primarily for the purpose of evaluating equipment's compliance with technical specifications intended to minimize the interference potential of devices that emit RF energy. As noted above, however, these rules are also designed to implement other statutory responsibilities. The Commission seeks comment on the scope of the authority to rely on such rules to effectuate other public interest responsibilities, including the Commission's section 303(e) authority to “[r]egulate the kind of apparatus to be used with respect to its external effects.” 47 U.S.C. 303(e). Does Congress's inclusion of the phrase “to be used,” rather than “used,” give the Commission authority to prevent the marketing and sale of equipment in addition to preventing licensees and others from using such equipment?

Alternatively, does the “public interest” phrase in section 302 itself provide independent authority to deny equipment authorization to equipment deemed to pose an unacceptable security risk? Section 302(a) directs the Commission to make reasonable regulations consistent with the public interest governing the interference potential of devices; it would appear to be in the public interest not to approve devices capable of emitting RF energy in sufficient degree to cause harmful interference to radio communications if such equipment has been deemed, pursuant to law, to pose an unacceptable risk to the national security of the United States or the security and safety of United States persons. The Commission seeks comment on this tentative conclusion.

The Commission also seeks comment on a potential alternative basis for such security rules. The Communications Assistance for Law Enforcement Act (CALEA) includes security requirements that apply directly to equipment intended for use by providers of telecommunications services. 47 U.S.C. 1001-1010. Section 105 requires telecommunications carriers to ensure that the surveillance capabilities built into their networks “can be activated only in accordance with a court order or other lawful authorization and with the affirmative intervention of an individual officer or employee of the carrier acting in accordance with regulations prescribed by the Commission,” (47 U.S.C. 1004) and the Commission has concluded that its rule prohibiting the use of equipment produced or provided by any company posing a national security threat implements that provision. Supply Chain First Report and Order, 34 FCC Rcd at 11436-37, paras. 35-36. The Commission is required to prescribe rules necessary to implement CALEA's requirements. 47 U.S.C. 229. Would rules prohibiting authorization of equipment on the Covered List, or that otherwise poses security risks, be justified as implementation of CALEA?

As noted above, the Commission believes it has ancillary authority under section 4(i) of the Act to adopt these revisions to its part 2 rules as reasonably necessary to the effective enforcement of the Secure Networks Act. The Commission also tentatively concludes that such rules would be consistent with the Commission's specific statutorily mandated responsibilities under the Communications Act to make reasonable regulations consistent with the public interest governing the interference potential of electronic devices, to protect consumers through the oversight of common carriers under Title II of that Act, and to prescribe the nature of services to be rendered by radio licensees under section 303(b) of that Act. The Commission seeks comment on this reasoning as well. The Commission also seeks comment on any other sources of authority for the Commission proposed rules.

The Commission's proposed revisions to the equipment authorization rules and processes to prohibit authorization of any “covered” equipment on the Covered List would apply only to equipment that has been determined by other agencies to pose “an unacceptable risk” to national security. The Commission has already concluded that it has no discretion to disregard determinations from these sources, which are enumerated in section 1.50002(b) of its rules. Hence, the Commission accepts the determination of these expert agencies.

Because the Commission has no discretion to ignore these determinations, the Commission believes that a conventional cost-benefit analysis—which would seek to determine whether the costs of the proposed actions exceed their benefits—is not directly called for. Instead, the Commission will consider whether the proposed actions would be a cost-effective means to prevent this dangerous equipment from being introduced into the nation's communications networks.

The Commission therefore seeks comment on the cost-effectiveness of the proposed revisions to the rules and procedures associated with the Commission's equipment authorization rules under part 2. Do the Commission's proposed rules promote the goals of ensuring that the national security interests are adequately protected from equipment on the Covered List, while simultaneously continuing the mission of making communications services available to all Americans? Are there alternative approaches that would achieve this goal in a more cost-effective manner?

Background. Under the Commission's rules, certain types of RF devices are exempt from demonstrating compliance under one of the equipment authorization procedures (either certification or SDoC). This exemption applies to specified digital devices in several types of products, including many part 15 devices (including incidental and unintentional radiators) because they generate such low levels of RF emission that they have virtually no potential for interfering with authorized radio services. Revision of Part 15 of the Rules Regarding the Operation of Radio Frequency Devices without an Individual License, GN Docket No. 87-389, Notice of Proposed Rulemaking, 2 FCC Rcd 6135, 6140, para. 39 (1987). In other services, the Commission has determined that because operators must be individually licensed and responsible for their stations ( e.g., Amateur Radio Service) or the type of operation poses low risk of harmful interference, such an exemption is warranted. See, e.g., 47 CFR 97.315. Exempt devices are required to comply with general conditions of operation, including the requirement that if an exempt device causes interference to other radio services the operator of that device must cease operating the device upon notification from the Commission and must remedy the interference. See 47 CFR 15.5.

The most diverse set of exempted devices operate under the part 15 unlicensed device rules. The categories of part 15 exempt devices include incidental radiators, unintentional radiators exempt under section 15.103, and subassemblies exempt under section 15.101. Specifically, section 15.103 of the Commission's rules provides that certain unintentional radiators, which are subject to the general conditions of operation provided in part 15, are exempt from the specific technical standards and other requirements of part 15. This includes: (1) Digital devices used exclusively in any transportation vehicle as an electronic control or power system equipment used by a public utility or in an industrial plant, as industrial, commercial, or medical test equipment, or in an appliance ( e.g., microwave oven, dishwasher, clothes dryer, air conditioner, etc.); (2) specialized medical digital devices; (3) digital devices that have very low power consumption ( i.e., not exceeding 6 nW); (4) joystick controllers or similar devices used with digital devices; and (5) digital devices that both use and generate a very low frequency ( i.e. less than 1.705 MHz) and which do not operate from the AC power lines or contain provisions for operation while connected to the AC power lines. Digital device subassemblies also are exempt from equipment authorization under section 15.101. Examples of subassemblies include circuit boards, integrated circuit chops, and other components that are completely internal to a product that do not constitute a final product. These include internal memory expansion boards, internal disk drives, internal disk drive controller boards, CPU boards, and power supplies. Subassemblies may be sold to the general public or to manufacturers for incorporation into a final product.

Discussion. The Commission recognizes that “covered” equipment potentially could include equipment that currently is exempt from the need to demonstrate compliance under the Commission's equipment authorization processes, which, to date, has looked only at the RF emissions capability of equipment. As noted above, most devices that are generally exempt from the Commission's equipment authorization requirements typically have such low RF emissions that they present virtually no potential for causing harmful interference to the authorized radio services. However, the Commission's concerns in relation to security considerations that pose unacceptable risks to the nation's communications networks are distinct from the concerns related to interference to authorized services. As such, the Commission finds it necessary to assess the regulation of otherwise exempt devices in relation to security concerns.

Accordingly, the Commission seeks comment on whether the Commission should consider possible revisions or clarifications to its rules to address issues related to “covered” equipment and the potential of such equipment, regardless of RF emissions characteristics, to pose an unacceptable risk to U.S. networks or users. The Commission seeks comment on whether the Commission should revise its rules to no longer provide an equipment authorization exemption to “covered” equipment. The Commission seeks comment on whether such a provision, if adopted, should apply only to part 15 unlicensed devices or should include any device, regardless of rule part under which it operates, in the consideration of possible revisions or clarifications to the Commission's rules to address issues related to “covered” equipment and the potential of such equipment, regardless of RF emissions characteristics, to nonetheless pose an unacceptable risk to U.S. networks or users. The Commission also asks whether it should require that any equipment (in whole or in part), regardless of claim of exemption, that is produced or provided by any entity that has produced or provided “covered” equipment on the Covered List be processed pursuant to the Commission's certification rules and processes (similar to the proposal requiring use of the certification process for such equipment instead of continued use of the SDoC process).

Currently, devices that are exempt from the equipment authorization requirement are not subject to FCC testing, filing, or record retention requirements. Such devices ordinarily would come to the attention of the Commission only in the event that harmful interference with other devices becomes an issue. In order to determine whether otherwise exempt “covered” equipment may present a security concern, the Commission would need to implement some means by which to identify such equipment that is in use in the United States. The Commission seeks comment on possible methods that the Commission could implement to identify otherwise exempt equipment. The Commission could, for instance, implement a registration system for otherwise exempt equipment produced or provided by any of the entities (or their respective subsidiaries or affiliates) that produce or provide “covered” equipment, as specified on the Covered List. Such a system could require that relevant responsible parties notify the Commission of the marketing, importation, or operation of such otherwise exempt equipment. Such notification would include identification of the responsible party, manufacturer, or importer and the general operating parameters of the equipment. Another example includes an attestation at time of marketing or import that the equipment is not “covered.” What are some potential burdens to responsible parties or other entities that would arise in connection with such a registration or attestation system? In what ways and to what extent would such burdens be acceptable to responsible parties to help protect the U.S. against the related security concerns? What type of information, and from which entities, should the Commission collect in order to identify otherwise exempt “covered” equipment? How many responsible parties would be impacted by these potential information collections and in what way would it impact their ability to conduct business? If the Commission were to revise its rules to remove the exemption with respect to “covered” equipment, the Commission seeks comment on any other types of action or activity ( e.g., outreach and education) that also would be helpful to ensure that all parties potentially affected by these changes understand the changes and will comply the prohibition associated with “covered” equipment.

The Commission discussed above the legal authority associated with the Commission's proposal to prohibit authorization of “covered” equipment in its equipment authorization process. The Commission tentatively concludes that the legal bases enunciated above also provide, pursuant to section 302 and section 4(i) of the Act, for actions that the Commission might take with respect to precluding “covered” equipment from being exempted from the equipment authorization process. The Commission seeks comment on this tentative conclusion.

If the Commission were to conclude that the rules should be revised to prohibit certain “covered” equipment from being exempted from the equipment authorization processes, this action would apply only to equipment that has been determined by other agencies to pose “an unacceptable risk” to national security. Because the Commission has no discretion to ignore these determinations, it believes that a conventional cost-benefit analysis—which would seek to determine whether the costs of the proposed actions exceed their benefits—is not necessary. Instead, as discussed above, the Commission will consider whether the proposed actions would be an effective means to prevent this dangerous equipment from being introduced into the nation's communications networks.

The actions that the Commission proposes above would serve to prohibit any prospective authorization of “covered” communications equipment on the Covered List as posing an unacceptable risk to national security. Those proposed actions do not, however, address whether the Commission could or should revoke any existing equipment authorizations of such “covered” communications equipment, and if so, the processes for doing so. The Commission addresses those issues here.

Background. Section 2.939 sets forth the Commission's rules for revoking authorizations of equipment. Section 2.939(a)(1) provides that the Commission may revoke an equipment authorization “[f]or false statements or representations either in the application or in materials or response submitted in connection therewith” or in records that the responsible party is required to maintain about the authorized equipment ( e.g., drawings and specifications, description of the equipment, any test report, equipment compliance information). Section 2.939(a)(2) states that the Commission may revoke an equipment authorization “[i]f upon subsequent inspection or operation it is determined that the equipment does not conform to the pertinent technical requirements or to the representations made in the original application.” Section 2.939(a)(3) provides that the Commission may revoke an equipment authorization “[i]f it is determined that changes have been made in the equipment other than those authorized by the rules or otherwise expressly authorized by the Commission.” Section 2.939(a)(4) provides that the Commission may revoke any equipment authorization “[b]ecause of conditions coming to the attention of the Commission which would warrant it in refusing to grant an original application.” As set forth in § 2.939(b) of the Commission's rules, the procedures for revoking an equipment authorization are the same procedures as revoking a radio station license under section 312 of the Communications Act. See 47 CFR 2.939(b); 47 U.S.C. 312. Finally, under § 2.939(c), the Commission also “may withdraw any equipment authorization in the event of changes in its technical standards.”

Discussion. If the Commission adopts the rules proposed above to prohibit any further authorization of “covered” equipment on the Covered List, the Commission seeks comment here on the extent to which the Commission should revoke any existing equipment authorizations of such “covered” equipment pursuant to the Commission's section 2.939 revocation rules. The Commission notes that if it revoked an existing equipment authorization, the marketing of that equipment would be prohibited pursuant to part 2 subpart I, per section 2.803(b), and import and marketing would be prohibited pursuant to part 2 subpart K, per sections 2.1201(a) and 2.1204(a).

The Commission tentatively concludes that sections 2.939(a)(1) and (2) would apply to “covered” equipment, such that the Commission has authority to revoke any existing equipment authorizations that may have been granted under false statements or representations (including non-disclosure) concerning whether an equipment authorization application that was subsequently granted had in fact included “covered” equipment (in whole or as a component part). Shenzhen Tangreat Technology Co., Ltd., 30 FCC Rcd 3501,3505, paras. 12-14 (EB 2015) ( Shenzhen ) (“substantial and material questions exist as to whether the authorization should be revoked because the information in the application was false or misleading”). This would enable the Commission to revoke any equipment authorizations that are granted after adoption of the rules proposed in this NPRM, even if the TCBs or the Commission had not acted to set aside the grant within the 30-day period following the posting of the grant on the Equipment Authorization System (EAS) database. The Commission seeks comment on this tentative conclusion.

To assure that otherwise authorized equipment is not subsequently replaced by any “covered” equipment (whether in whole or with component part(s) of “covered” equipment), the Commission also tentatively concludes that section 2.939(a)(3) would apply, and that the Commission can revoke an existing equipment authorization if changes have been made in the equipment other than those authorized by the rules or otherwise expressly authorized by the Commission. Shenzhen, 30 FCC Rcd at 3505-06, paras. 15-17 (Commission investigation demonstrated that the equipment marketed does not match the specifications described in the granted application). The Commission seeks comment on these and any other scenarios that implicate the need to revoke an existing equipment authorization to exclude “covered” equipment from the U.S. market.

The Commission also seeks comment on other circumstances that would merit Commission action to revoke any existing authorization of “covered” equipment. Under what circumstances should the Commission revoke an existing authorization? For instance, to what extent does section 2.939(a)(4), which allows revocation “[b]ecause of conditions coming to the attention of the Commission which would warrant it in refusing to grant an original application,” provide guidance? Specifically, if the Commission would not have granted an application with equipment from an entity on the Covered List under newly adopted rules, then could the Commission use section 2.939(a)(4) to revoke an equipment authorization with said equipment that had been granted prior to the adoption of the rule? Shenzhen, 30 FCC Rcd at 3506, paras. 18-20 (when Commission investigation determined device was a radio frequency jammer, “substantial and material questions exist as to whether the application should have been granted”), see also J Communications Co., Ltd., 19 FCC Rcd 10643, 10645, para. 9 (EB 2004) (revoking GMRS radios because the Commission could have denied the original equipment authorization application for the devices “had this fact been made known to the Commission”). The Commission seeks comment on this approach and on any other approach or particular circumstances that would merit Commission action to revoke any existing authorization that concerns “covered” equipment on the Covered List.

The Commission seeks comment on the applicability of section 2.939(c), which states that the Commission also “may withdraw any equipment authorization in the event of changes in its technical standards,” with regard to revocation of authorizations that include “covered” equipment. In the event the Commission were to adopt rules barring new equipment authorizations for equipment on the Covered List, it tentatively concludes that such a change should constitute a change to the Commission's technical standards that could warrant withdrawal of equipment authorizations that are contrary to these new rules. The Commission seeks comment.

In addition, the Commission seeks comment on the specific procedures the Commission should use if and when it seeks to revoke an existing equipment authorization. Section 2.939(b) requires that revocation of an equipment authorization must be made in the “same manner as revocation of radio station licenses,” and thus presumably would include the requirement that the Commission serve the grantee/responsible party with an order to show cause why revocation should not be issued and must provide that party with an opportunity for a hearing. See 47 U.S.C. 312(c). The Commission seeks comment on this requirement. What precisely are the procedures that the Commission should employ if seeking to revoke particular “covered” equipment? As the Commission discussed above, § 2.939(c) authorizes the Commission to “withdraw any equipment authorization in the event of changes in its technical standards.” Pursuant to this provision, should the Commission provide a suitable amortization period for equipment already in the hands of users or in the manufacturing process? If so, what would that be? What other factors should the Commission consider that might warrant revocation under the new rules, such as those applicable to Title III licenses under section 312 of the Communications Act? 47 U.S.C. 312. Should the Commission revise or clarify the existing requirements to enable the Commission to revoke authorizations of this “covered” equipment given that it already has been determined that the equipment poses an unacceptable risk?

In considering whether any existing equipment authorizations of “covered” equipment should be revoked, is there some process in which the Commission should engage to help identify particular equipment authorizations that should be considered for revocation? What process should the Commission use to identify equipment authorizations for revocation? For example, to what extent might the Commission rely on others' reports of a violation, and to what extent might such reports need to be supported in the record or independently verified? If the Commission were to conclude that revocation may be appropriate regarding particular “covered” equipment, this action would apply only to equipment that has been determined by other agencies to pose “an unacceptable risk” to national security. The Commission nonetheless recognizes the need to avoid taking actions that are overbroad in terms of affecting users of the equipment or would require removal of this equipment faster than it reasonably can be replaced. If the Commission concludes that revocation may be appropriate regarding particular “covered” equipment, the Commission seeks comment on the appropriate and reasonable transition period for removing that particular equipment. This could include a transition period for non-conforming equipment to make any necessary modifications to communications equipment or services, including removing the “covered equipment” (in whole or as a component) from that equipment or service. To what extent should the Commission apply different transition periods to different equipment authorizations that the Commission revokes? Are there any situations that might merit immediate compliance with the new equipment restrictions? Pursuant to section 503(b)(5) of the Act, the Commission must issue citations against non-regulatees for violations of FCC rules before proposing any monetary penalties. 47 U.S.C. 503(b)(5). Such citations “provide notice to parties that one or more actions violate the Act and/or the FCC's rules—and that they could face a monetary forfeiture if the conduct continues.” See Federal Communications Commission, Enforcement Bureau, “Enforcement Overview” at 10 (April 2020), https://www.fcc.gov/sites/default/files/public_enforcement_overview.pdf. Given this requirement, what enforcement policy would be appropriate for the continued marketing, sale, or operation of equipment by such parties during this transition period? What, if any, educational and outreach efforts should the Commission undertake to inform the public regarding any such revocations and their legal effect?

Finally, the Commission seeks comment on whether the Commission should make any revisions to § 2.939. Should this section be revised and/or clarified to specifically include “covered” equipment or whether the rule should be clarified to better encompass the intent in this rulemaking? What other specific revisions might be appropriate for consideration?

Background. The Commission's competitive bidding process requires each applicant to make various certifications as a prerequisite for participation in an auction. Requiring certifications as a condition of participation guards against potential harms to the public interest before the harms could occur.

As described above, the Commission has designated Huawei and ZTE, and their subsidiaries, parents, or affiliates, as companies that pose a national security threat to the integrity of communications networks and the communications supply chain. See generally Huawei Designation Order, 35 FCC Rcd 6604, ZTE Designation Order, 35 FCC Rcd 6633. As a result of this determination, funds from the Commission's Universal Service Fund may no longer be used to purchase, obtain, maintain, improve, modify, or otherwise support any equipment or services produced or provided by these covered companies.

In reaching this determination, the Commission noted Huawei's and ZTE's ties to the Chinese government and military apparatus, along with Chinese laws obligating it to cooperate with requests by the Chinese government to use or access its systems. Huawei Designation Order, 35 FCC Rcd at 6609, paras. 13-14. However, it also is well-established that the Chinese government helps fuel Huawei's growth by deploying powerful industrial policies to make Huawei equipment cheaper to deploy than the alternatives. Chuin-Wei Yap, State Support Helped Fuel Huawei's Global Rise, Wall Street Journal (Dec. 25, 2019), https://www.wsj.com/articles/state-support-helped-fuel-huaweis-global-rise-11577280736. These policies include both direct subsidies to Huawei and state-funded export financing.

To illustrate, a recent report by the Center for American Progress found that China's state-owned banks have provided billions of dollars to Huawei's customers. Melanie Hart and Jordan Link, Center for American Progress, There Is a Solution to the Huawei Challenge (Oct. 14, 2020), https://www.americanprogress.org/issues/security/reports/2020/10/14/491476/solution-huawei-challenge/. According to the report, these loans “can make Huawei impossible to beat—even if competitors can match the company's state-subsidized prices—because China's state banks offer packages that commercial banks generally cannot match.” Id. at para. 25. These loans may be run through Huawei or provided directly to Huawei's customers.

The Commission notes that the nature of state support for Huawei and ZTE has shifted over time. Recently, the Commission has observed how state-funded export financing may provide substantial funding to mobile operators already using equipment from Huawei or ZTE prior to national spectrum auctions in other countries. In one recent case, a Huawei customer was able to substantially outbid a rival new entrant in a spectrum auction—thereby denying entry to a new competitor that was planning on using trustworthy equipment in its 5G build-out.

Distortionary financing intended to support participation in spectrum auctions of network operators who then deploy covered equipment and services may raise concerns about risks to the national security of the United States and the security and safety of United States persons. The Commission considers here the benefits of protecting against such risks prior to the start of a Commission auction.

Discussion. Given recent developments internationally, the Commission seeks comment on whether the Commission should require an applicant to participate in competitive bidding to certify that its bids do not and will not rely on financial support from any entity that the Commission has designated under section 54.9 of its rules as a national security threat to the integrity of communications networks or the communications supply chain. Could such support implicate the kinds of influence over the applicant that would pose risks to national security? Or could it distort auction outcomes in ways that would pose risks to national security? What challenges would an applicant have in satisfying such a certification, given potential uncertainties regarding the ultimate origin of financial support? Can the certification be crafted to address these challenges? Do these uncertainties present difficulties for the Commission in enforcing the certification? How can these difficulties be mitigated?

If the Commission adopts a requirement that an applicant certify that its bids do not and will not rely on financial support by an entity designated by the Commission as a national security threat, should the certification be limited to just the entities so designated by the Commission under section 54.9 or be more expansive? What are the challenges with including indirect provision of financing in the certification and how can they be mitigated to ensure it accomplishes its purpose? Should the certification be expanded to include an identified set of related entities, e.g., entities subject to control by an entity designated by the Commission? What entities should such a set include? How does the fungibility of financial resources complicate compliance? How can enforcement challenges be alleviated?

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rule Making (Notice). 5 U.S.C. 603. (The RFA, 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996)). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 5 U.S.C. 603(a). In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal Register . 5 U.S.C. 603(a).

In this Notice of Proposed Rulemaking, we propose prohibiting the authorization of any equipment on the list of equipment and services (Covered List) that the Commission maintains pursuant to the Secure and Trusted Communications Networks Act of 2019. Secure and Trusted Communications Networks Act of 2019, Public Law 116-124, 133 Stat. 158 (2020) (codified as amended at 47 U.S.C. 1601-1609) (Secure Networks Act). (The Commission's Public Safety and Homeland Security Bureau maintains the list at https://www.fcc.gov/supplychain/coveredlist ). Such equipment has been found to pose an unacceptable risk to the national security of the United States or the security and safety of United States persons. We also seek comment on whether and under what circumstances we should revoke any existing authorizations of such “covered” communications equipment. Finally, we invite comment on whether we should require additional certifications relating to national security from applicants who wish to participate in Commission auctions.

The proposed action is taken under authority found in sections 4(i), 301, 302, 303, 309(j), 312, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303, 309(j), 312 and 316; and § 1.411 of the Commission's rules, 47 CFR 1.411.

Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. See 5 U.S.C. 601(3)-(6). First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. See SBA, Office of Advocacy, “What's New With Small Business?” https://cdn.advocacy.sba.gov/wp-content/uploads/2019/09/23172859/Whats-New-With-Small-Business-2019.pdf (Sept. 2019). These types of small businesses represent 99.9% of all businesses in the United States, which translates to 30.7 million businesses. Id.

Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” 5 U.S.C. 601(4). The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2018, there were approximately 571,709 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS. See Exempt Organizations Business Master File Extract (E.O. BMF), “CSV Files by Region,” https://www.irs.gov/charities-non-profits/exempt-organizations-business-master-file-extract-eo-bmf.

Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” 5 U.S.C. 601(5). U.S. Census Bureau data from the 2017 Census of Governments (s ee 13 U.S.C. 161) indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. See U.S. Census Bureau, 2017 Census of Governments—Organization Table 2. Local Governments by Type and State: 2017 [CG1700ORG02]. https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. (Local governmental jurisdictions are made up of general purpose governments (county, municipal and town or township) and special purpose governments (special districts and independent school districts). See also Table 2. CG1700ORG02 Table Notes_Local Governments by Type and State_2017). Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” See U.S. Census Bureau, 2017 NAICS Definition, “517410 Satellite Telecommunications,” https://www.census.gov/cgi-bin/sssd/naics/naicsrch?input=517410&search=2017+NAICS+Search&search=2017. Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $35 million or less in average annual receipts, under SBA rules. See 13 CFR 121.201, NAICS Code 517410. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. See U.S. Census Bureau, 2012 Economic Census of the United States, Table ID: EC1251SSSZ4, Information: Subject Series—Estab and Firm Size: Receipts Size of Firms for the U.S.: 2012, NAICS Code 517410, https://data.census.gov/cedsci/table?text=EC1251SSSZ4&n=517410&tid=ECNSIZE2012.EC1251SSSZ4&hidePreview=false&vintage=2012. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. See U.S. Census Bureau, 2017 NAICS Definition, “ 517919 All Other Telecommunications,” https://www.census.gov/naics/?input=517919&year=2017&details=517919. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Id. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. Id. The SBA has developed a small business size standard for “All Other Telecommunications”, which consists of all such firms with annual receipts of $35 million or less. See 13 CFR 121.201, NAICS Code 517919. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. See U.S. Census Bureau, 2012 Economic Census of the United States, Table ID: EC1251SSSZ4, Information: Subject Series—Estab and Firm Size: Receipts Size of Firms for the U.S.: 2012, NAICS Code 517919, https://data.census.gov/cedsci/table?text=EC1251SSSZ4&n=517919&tid=ECNSIZE2012.EC1251SSSZ4&hidePreview=false. Of those firms, a total of 1,400 had annual receipts less than $25 million and 15 firms had annual receipts of $25 million to $49,999,999. Id. Thus, the Commission estimates that the majority of “All Other Telecommunications” firms potentially affected by our action can be considered small.

Fixed Satellite Transmit/Receive Earth Stations. There are approximately 4,303 earth station authorizations, a portion of which are Fixed Satellite Transmit/Receive Earth Stations. We do not request nor collect annual revenue information and are unable to estimate the number of the earth stations that would constitute a small business under the SBA definition. However, the majority of these stations could be impacted by our proposed rules.

Fixed Satellite Small Transmit/Receive Earth Stations. There are approximately 4,303 earth station authorizations, a portion of which are Fixed Satellite Small Transmit/Receive Earth Stations. We do not request nor collect annual revenue information and are unable to estimate the number of fixed small satellite transmit/receive earth stations that would constitute a small business under the SBA definition. However, the majority of these stations could be impacted by our proposed rules.

Mobile Satellite Earth Stations. There are 19 licensees. We do not request nor collect annual revenue information and are unable to estimate the number of mobile satellite earth stations that would constitute a small business under the SBA definition. However, it is expected that many of these stations could be impacted by our proposed rules.

Wireless Telecommunications Carriers (except satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. See U.S. Census Bureau, 2017 NAICS Definition, “ 517312 Wireless Telecommunications Carriers (except Satellite),” https://www.census.gov/naics/?input=517312&year=2017&details=517312. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. See 13 CFR 121.201, NAICS Code 517312 (previously 517210). For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. See U.S. Census Bureau, 2012 Economic Census of the United States, Table ID: EC1251SSSZ5, Information: Subject Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012, NAICS Code 517210, https://data.census.gov/cedsci/table?text=EC1251SSSZ5&n=517210&tid=ECNSIZE2012.EC1251SSSZ5&hidePreview=false&vintage=2012. Of this total, 955 firms employed fewer than 1,000 employees and 12 firms employed of 1000 employees or more. Id. Thus under this category and the associated size standard, the Commission estimates that the majority of Wireless Telecommunications Carriers (except Satellite) are small entities.

Wireless Carriers and Service Providers. Neither the SBA nor the Commission has developed a size standard specifically applicable to Wireless Carriers and Service Providers. The closest applicable is Wireless Telecommunications Carriers (except Satellite) ( see U.S. Census Bureau, 2017 NAICS Definition, “ 517312 Wireless Telecommunications Carriers (except Satellite),” https://www.census.gov/naics/?input=517312&year=2017&details=517312 ), which the SBA small business size standard is such a business is small if it 1,500 persons or less. Id. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. See U.S. Census Bureau, 2012 Economic Census of the United States, Table ID: EC1251SSSZ5, Information: Subject Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012, NAICS Code 517210, https://data.census.gov/cedsci/table?text=EC1251SSSZ5&n=517210&tid=ECNSIZE2012.EC1251SSSZ5&hidePreview=false&vintage=2012. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of Wireless Carriers and Service Providers are small entities.

According to internally developed Commission data for all classes of Wireless Service Providers, there are 970 carriers that reported they were engaged in the provision of wireless services. See Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and Technology Division, Trends in Telephone Service at Table 5.3 (Sept. 2010) ( Trends in Telephone Service ), https://apps.fcc.gov/edocs_public/attachmatch/DOC-301823A1.pdf. Of this total, an estimated 815 have 1,500 or fewer employees, and 155 have more than 1,500 employees. See id. Thus, using available data, we estimate that the majority of Wireless Carriers and Service Providers can be considered small.

Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” See U.S. Census Bureau, 2017 NAICS Definition, “517311 Wired Telecommunications Carriers,” https://www.census.gov/naics/?input=517311&year=2017&details=517311. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. See 13 CFR 121.201, NAICS Code 517311 (previously 517110). U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. See U.S. Census Bureau, 2012 Economic Census of the United States, Table ID: EC1251SSSZ5, Information: Subject Series—Estab & Firm Size: Employment Size of Firms for the U.S.: 2012, NAICS Code 517110, https://data.census.gov/cedsci/table?text=EC1251SSSZ5&n=517110&tid=ECNSIZE2012.EC1251SSSZ5&hidePreview=false. Of this total, 3,083 operated with fewer than 1,000 employees. Id. Thus, under this size standard, the majority of firms in this industry can be considered small.

Licenses Assigned by Auctions. Initially, we note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

Private Land Mobile Radio (“PLMR”). PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. Companies of all sizes operating in all U.S. business categories use these radios. Because of the vast array of PLMR users, the Commission has not developed a small business size standard specifically applicable to PLMR users. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engag ed in radiotelephone communications. See U.S. Census Bureau, 2017 NAICS Definition, “517312 Wireless Telecommunications Carriers (except Satellite),” https://www.census.gov/naics/?input=517312&year=2017&details=517312. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. See 13 CFR 121.201, NAICS Code 517312 (formerly 517210). For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. See U.S. Census Bureau, 2012 Economic Census of the United States, Table ID: EC1251SSSZ5, Information: Subject Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012, NAICS Code 517210, https://data.census.gov/cedsci/table?text=EC1251SSSZ5&n=517210&tid=ECNSIZE2012.EC1251SSSZ5&hidePreview=false&vintage=2012. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Id. Thus under this category and the associated size standard, the Commission estimates that the majority of PLMR Licensees are small entities.

According to the Commission's records, a total of approximately 400,622 licenses comprise PLMR users. This figure was derived from Commission licensing records as of September 19, 2016. (Licensing numbers change on a daily basis. This does not indicate the number of licensees, as licensees may hold multiple licenses. There is no information currently available about the number of PLMR licensees that have fewer than 1,500 employees). There are a total of approximately 3,577 PLMR licenses in the 4.9 GHz band; 19,359 PLMR licenses in the 800 MHz band; and 3,374 licenses in the frequencies range 173.225 MHz to 173.375 MHz. The Commission does not require PLMR licensees to disclose information about number of employees, and does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. The Commission however believes that a substantial number of PLMR licensees may be small entities despite the lack of specific information.

Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. See U.S. Census Bureau, 2017 NAICS Definition, “334220 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing,” https://www.census.gov/naics/?input=334220&year=2017&details=334220. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. Id. The SBA has established a small business size standard for this industry of 1,250 employees or less. See 13 CFR 121.201, NAICS Code 334220. U.S. Census Bureau data for 2012 show that 841 establishments operated in this industry in that year. See U.S. Census Bureau, 2012 Economic Census of the United States, Table ID: EC1231SG2, Manufacturing: Summary Series: General Summary: Industry Statistics for Subsectors and Industries by Employment Size: 2012, NAICS Code 334220, https://data.census.gov/cedsci/table?text=EC1231SG2&n=334220&tid=ECNSIZE2012.EC1231SG2&

This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ), in ET Docket No. 21-264, FCC 21-83, adopted on July 13, 2021 and released on July 14, 2021. The full text of this document is available for public inspection and can be downloaded at: https://www.fcc.gov/document/fcc-seeks-enable-state-art-radar-sensors-60-ghz-band-0 or by using the search function for ET Docket No. 20-382 on the Commission's ECFS web page at w ww.fcc.gov/ecfs.

Discussion. The Part 15 rules permit low-power intentional radiators (popularly known as “unlicensed devices”) to operate without an individual license where such use is not anticipated to cause harmful interference to authorized users of the radio spectrum. Unlicensed devices in the 60 GHz band generally include indoor/outdoor communication devices such as WiGig wireless local area networking (WLAN) devices, outdoor fixed point-to-point communication links, and field disturbance sensors (FDS)—which includes radar operations. Unlicensed device users must account for the operations of authorized Federal and non-Federal users in the band, who operate under a variety of co-primary allocations. These allocations, which vary by band segment, consist of the Mobile, Fixed, Inter-Satellite, Earth-Exploration Satellite Service (EESS), Space Research, Mobile-Satellite, Radiolocation, Radionavigation, and Radionavigation-Satellite services.

Section 15.255 of the rules stipulates operational policies and technical parameters for the 60 GHz band. The rule limits FDS operations to fixed operation or when used as short-range devices for interactive motion sensing (SRIMS). Furthermore, a fixed FDS with an occupied bandwidth fully contained within the 61.0-61.5 GHz band may operate with average output power levels up to 40 dBm and peak output power levels up to 43 dBm, while all other FDS devices (including those being used for SRIMS) are limited to a maximum transmitter conducted output power not to exceed -10 dBm and a maximum EIRP level not to exceed 10 dBm.

When it first adopted § 15.255 in 1995, the Commission stated that its intent was to foster the potential of the 60 GHz band “for allowing the development of short-range wireless radio systems with communications capabilities approaching those . . . achievable only with coaxial and optical fiber cable.” When it finalized the rule by adopting a spectrum etiquette three years later, it also included a provision that permitted fixed FDS operation in the band.

In 2016, the Commission further expanded unlicensed device use in the band to permit limited mobile radar operations and to extend the use of fixed field disturbance sensors to the 64-71 GHz band. At that time, the Commission recognized that wireless innovation included the development of gesture-recognition technology using short-range radars that would allow users to interact with devices without needing to touch them. It thus decided to permit SRIMS radars while also noting that the record before it was insufficient to allow for the unfettered operation of mobile radars in the band. Specifically, the Commission's decision permitted the “narrow application of mobile radars for short-range interactive motion sensing” at reduced power levels to ensure that they would successfully co-exist with co-channel communications devices already permitted to operate in the band. While the Commission did not adopt a specific definition for SRIMS, in permitting narrow use of short-range mobile radars it discussed the work of Google LLC (Google) in developing its “Soli” sensor technology, which envisioned that smartphones and other personal devices would be able to sense hand gestures when a user is located at a very short distance from the device to perform functions such as controlling web pages or answering phone calls. Furthermore, while the Commission specifically rejected comments calling on it to completely eliminate restrictions on FDS use, it also stated that it might consider allowing higher power levels in the future after it had acquired more experience with the devices it was permitting at that time.

Since the 2016 decision, there has been continued interest in developing mobile radar applications that use the 60 GHz band. To date, the Commission's Office of Engineering and Technology (OET) has granted focused waivers of the rules to support discrete applications. First, Google requested a waiver of the emission limits to allow Soli radar devices to operate at a higher output power level than what had been authorized in the rulemaking, arguing that it had determined that higher power levels were necessary for the radar sensor to provide sufficient resolution to engage in effective interactions. In its 2018 order granting that waiver, which was limited to use of the specific Soli sensor described in Google's request, OET found that allowing Google Soli sensors to operate at the requested power levels would not materially change the operating environment in the 57-64 GHz band from the perspective of the other users in the band. Specifically, it determined that the higher-power Google Soli device would be able to cooperatively share this spectrum with all users. The waiver permitted Google to deploy its Soli sensor technology at 10 dBm peak transmitter conducted output power, 13 dBm peak EIRP level, and 13 dBm/MHz power spectral density, with a maximum 10% duty cycle in any 33 milliseconds (ms) interval. This represented a lesser peak power limit than Google had originally sought, as it had revised its request following discussions with other parties who had interests in using the band for unlicensed operations, such as Facebook, in an effort to facilitate coexistence between unlicensed users in the band.

Recently, OET granted waivers to several parties to permit the operation of vehicle cabin-mounted radars as well as health-care related and other applications in the 57-64 GHz range at the same power levels as those granted to Google in 2018. These narrowly tailored waivers support an especially compelling public interest—using radar technology to monitor for children left in dangerous, hot cars and to trigger alerts that could save lives. While radars operating under these waivers must be installed within the vehicle cabin and have the primary function of preventing children from inadvertently being left unattended in rear car seats, they are also expected to provide additional passenger safety and theft prevention benefits. In addition, OET granted a waiver to Leica Geosystems AG in July 2020 that allows a limited number of radars to operate in the 60-64 GHz band on specialized unmanned aircraft for the specific purpose of avoiding collisions with structures, supporting wires, or other fixed objects during the visual inspection of structures.

Applications such as the use of in-cabin automotive radars represent one of the many uses that parties have identified as being well suited for development in the 57-71 GHz band if the § 15.255 rules were amended to permit expanded mobile radar use. The Commission has received additional waiver requests asking for permission, for example, to install a radar on the exterior of a vehicle to enable closure of a door by the detection of foot movement or hand gestures; to operate 60 GHz radars in robotic lawn mowers, or in personal safety wall-mount devices to detect changes in a person's gait or a fall, and in 3D imaging equipment in healthcare environments. In general, these requests have been consistent with the same technical parameters as the waiver granted to Google and are represented to occupy the same “spectrum footprint” as the Soli device. The increased interest in use of the band and accompanying breadth of potential applications that parties have identified is a relatively recent development, attributable at least in part, the Commission believes, to the availability of mass-produced chipsets that are capable of operating in the band, as well as the prospect of marketing and operating these mobile radar devices on a broad international scale.

To that end, the Commission notes that operation at higher power than specified in the Commission's rules has been allowed in Europe under general rules for short-range devices. A European Telecommunications Standards Institute (ETSI) standard, which has been in effect since 2014, permits short-range devices to operate in a portion of the 57-71 GHz band at power levels that exceed those for FDS—including those operating as SRIMS—under § 15.255 of the Commission's rules. Specifically, ETSI Standard EN 305 550 permits operation of short-range devices in the 57-64 GHz band at up to 20 dBm mean EIRP, while § 15.255(c)(3) presently specifies that the peak EIRP level for FDS devices shall not exceed 10 dBm. ETSI EN 305 550 also permits a maximum transmitter output power of 10 dBm, which is 20 dB greater than the level that § 15.255(c)(3) permits in this band. There are some additional differences between the US and European approaches. For example, the ETSI power limits are based on average measurements, whereas the Commission's limits are based on peak power measurements. In addition, ETSI EN 305 550 also requires short-range devices in the 57-64 GHz band to comply with a power spectral density (PSD) limit of 13 dBm/MHz, which the Commission's rules do not include. Finally, unlike the U.S, ETSI does not have a separate provision that allows for higher EIRP levels of up to 40 dBm for FDS in the 61.0-61.5 GHz band, nor does it provide for operation in the 64-71 GHz band.

The protocols for wireless systems operating in the 60 GHz band within the U.S. have been established by the Institute of Electrical and Electronics Engineers (IEEE) 802.11 Standards Committee. These protocols are often referred to as “WiGig,” named for the former Wireless Gigabit Alliance which advocated for their development. The current IEEE 802.11ad standard allows for channel sizes of up to 2.16 gigahertz in the 60 GHz band, which support a data rate of up to 8 gigabits per second and permits a total of six channels in the 57-71 GHz band available in the United States. Furthermore, there are IEEE 802.11 working groups with ongoing activities to define the channel access protocols to enable the same 60 GHz system transmitting communication signals to transmit radar signals.

The ongoing interest in expanding the scope of permissible unlicensed operations in the 60 GHz band has prompted interested parties to form a 60 GHz Coexistence Study Group that has been looking into ways to accommodate both unlicensed communications device and FDS operations in the band. This group, which has attracted the active participation of many key members of the industry and meets on a regular basis, operates independently of the Commission. Members of this group, however, have submitted comments and ex parte filings in conjunction with many of the recent waiver proceedings. In general, these submissions have documented the parties' interest in 60 GHz unlicensed operations and have encouraged us to initiate a rulemaking proceeding to review § 15.255 of the Commission's rules with a goal of putting into place a new framework to promote further innovation in the 60 GHz band by both unlicensed communications and FDS operations.

Finally, the 2020 panel of the FCC's Technological Advisory Council (TAC) took notice of the 60 GHz Coexistence Study Group when its Future of Unlicensed Operations working group examined ways to improve regulations for the 60 GHz band. As part of the TAC's January 14, 2021 meeting, the working group recommended that the Commission initiate a rulemaking proceeding to examine the 60 GHz rules in § 15.255 to address issues raised by the numerous waiver requests that had been filed.

Discussion. The Commission believes that there are significant benefits in initiating this rulemaking proceeding, and the Commission agrees with the TAC and other parties that have urged us to comprehensively evaluate unlicensed operations under § 15.255 of the Commission's rules. The Commission realizes that past individual waivers have served as an important “relief valve” that allow for unique types of operations that have important public interest benefits and that do not result in harmful interference to incumbent licensed users or jeopardize coexistence with other unlicensed users but do not comply with the Commission's rules. However, they are an inappropriate mechanism for providing the type of broad-based relief that the Commission considers here. Together, the overwhelming interest in FDS operations in the 60 GHz band, the breadth of deployments that parties have identified, and the opportunities for innovation that will be made possible by the availability of relatively inexpensive application-agnostic FDS-capable chipsets make the Commission's initiation of a rulemaking proceeding both timely and appropriate. In recognition that unencumbered unlicensed operation has proven to be an especially powerful engine for innovation and economic growth, the Commission's proposals are designed to expand the opportunities for unlicensed FDS operations in the band to the greatest extent possible. At the same time, the Commission's proposals are also designed to provide assurance that the unlicensed communications devices that have been permitted to use the band since it was first made available for unlicensed operations will be able to coexist with these new unlicensed operations. And, in all cases, the Commission's proposals remain true to the bedrock principle that unlicensed devices, regardless of type, must not cause harmful interference to authorized users of the band.

In this NPRM, the Commission proposes targeted changes to § 15.255 of the Commission's rules to expand unlicensed FDS device operations in the 60 GHz band. First, the Commission proposes that all FDS devices that limit their operating frequencies to the 57-64 GHz portion of the band would be permitted to transmit at a maximum of 20 dBm average EIRP, 13 dBm/MHz average EIRP power spectral density, and 10 dBm transmitter conducted output power, along with a maximum 10% duty cycle restriction within any 33 ms interval. FDS devices will be able to continue to operate across the entire 57-71 GHz band at the 10 dBm EIRP and -10 dBm conducted output power limits specified in the Commission's existing rules. By streamlining the Commission's rules in this manner, the Commission would no longer need the special provisions for short-range interactive motion-sensing mobile radars ( i.e. SRIMS) that are contained in the Commission's existing rules. Second, the Commission also proposes to retain and potentially to expand on the provision of § 15.255(c)(2) allowing fixed FDS devices that contain their operating bandwidth to the 61.0-61.5 GHz band to transmit at 40 dBm average EIRP and 43 dBm peak EIRP. Finally, the Commission seeks comment on methods to enhance coexistence ( e.g., listen-before-talk or other spectrum sensing/contention avoidance capabilities) that could be used to allow the same power level for FDS devices as is currently permitted for 60 GHz communication devices (up to 40 dBm EIRP) across the entire 57-71 GHz band. The Commission is not proposing any rule revisions for existing unlicensed communication devices such as WiGig WLAN or fixed point-to-point wireless links that currently operate in the 57-71 GHz band. However, the Commission seek comment on whether there are particular provisions that the Commission is proposing for FDS operation, such as an antenna gain limit instead of a conducted power limit and requiring use of a spectrum sensing mechanism, that should be more broadly applied to all Part 15 devices operating in the 57-71 GHz band.

The Commission notes that the TAC's Future of Unlicensed Operations working group suggested the Commission seek comment on whether the rules should allow greater radiated power for radar applications, if the parameters of the Google Soli waiver should be incorporated into the rules, and whether there are changes to the conditions and technical requirements set forth in the recent waivers that would improve sharing with communications applications. It further suggested that the Commission ask whether the use of a contention-based protocol should be required, and whether 60 GHz band unlicensed radar applications should be allowed to use the same power levels as communications applications in the band if they incorporate listen-before-talk procedures. The Commission invites commenters to address these specific questions.

As an initial matter, given that the Commission refers to both FDS and radars extensively throughout this document, the Commission addresses the relationship between the two terms. Field disturbance sensors broadly include radar operations. Although § 15.3(l) of the Commission's rules provides a definition for “field disturbance sensor,” it does not provide a definition for “radar,” and instead parties must look to the radar definition contained in § 2.1 of the Commission's rules. The Commission seeks comment on whether the rules related to “field disturbance sensors” in § 15.255 are sufficiently broad and flexible to accommodate the class(es) of devices that parties anticipate will be developed to operate in the 57-71 GHz band. The Commission also seeks comment on whether the Commission should modify the definitions contained in Part 15 of the Commission's rules to provide greater clarity about the relationship between FDS and radars and, if so, how? Commenters that support modifying the existing Part 15 definitions should also address whether such modifications would require adjustments elsewhere in the rules.

As noted above, a number of parties have been granted waiver of certain provisions of § 15.255 to permit operation of innovative radar devices in the 60 GHz band. To the extent the Commission modifies its rules in this proceeding to expand unlicensed FDS device operations in the 60 GHz band, the Commission expects that all future 60 GHz FDS operations would be conducted subject to the Commission's modified rules. Accordingly, the Commission proposes that if the Commission adopts such modifications to the Commission's rules in this proceeding, the previously granted 60 GHz FDS waivers would be terminated and FDS device manufacturers would be expected to conform their operations to the Commission's rules as revised. The Commission seeks comment on this proposal.

The Commission first proposes to modify § 15.255 of the Commission's rules to afford greater opportunities for fixed and mobile FDS devices operating in the 57-64 GHz portion of the 60 GHz band. The extensive analysis that has accompanied the multiple waiver requests that have been submitted to the Commission, the widespread consumer use of Google's Soli-equipped devices without reported cases of harmful interference and the ongoing efforts of the industry and standards groups to identify model coexistence practices for unlicensed users gives us confidence that there is now sufficient information for us to build a record to expand unlicensed mobile radar use beyond the toehold the Commission first provided in 2016 and the narrow waivers that have been issued to date. The Commission's baseline proposals draw from the technical and operating conditions incorporated into the waivers granted to Google for its Soli device and to automobile manufacturers and suppliers for in-cabin radars to detect children left in cars, with additional modifications to account for harmonization with international provisions governing operation in the band.

As discussed below, the Commission proposes to: Focus device operation to the 57-64 GHz portion of the 60 GHz band; allow operations at higher power levels than were permitted in the waivers but consistent with the well-established ETSI standards; and require a duty cycle that is consistent with what was established in the Google waiver, with the possibility of mandating a minimum off-time between cycles.

Based on the Commission's review of the multiple waiver requests that pertain to FDS use of the 60 GHz band, parties designing and manufacturing radars to operate in the 60 GHz band have proposed to restrict their spectrum usage to frequencies below 64 GHz (constituting the 60-64 GHz or 57-64 GHz band segments, depending on the filing), although § 15.255 permits operation across the 57-71 GHz band for fixed FDS and SRIMS devices such as the Google Soli. The Commission surmises that the requests seek to limit operation to the lower portion of the 57-71 GHz band to align operations and devices with international standards such as the European ETSI Harmonized Standard EN 305 550 that restrict short-range devices, e.g., radars, to the 57-64 GHz band. The Commission seeks comment on this assumption.

The Commission notes that a proposal has been submitted to IEEE 802.11 to define a channel access protocol to enable the same 60 GHz systems to transmit signals that can be used both for communications and radar purposes to be decoded by a similar system at the receiving end. Equipment designs for 60 GHz transmitters are thus considering radar transmissions alongside communication transmissions in the same transmitter or chip. While the IEEE efforts in this area may be considering the entire 57-71 GHz band, the Commission proposes to limit operation of FDS devices operating under the Commission's proposed higher power limits (20 dBm EIRP) to the 57-64 GHz band. As discussed above, limiting the Commission's proposal in this way provides for devices that are consistent with the international standards, which only specify FDS operation in the 57-64 GHz band. The Commission seeks comment on this proposal. Would limiting operation of higher power FDS devices to the 57-64 GHz band benefit 60 GHz WLAN systems operating in close proximity to FDS devices by leaving the 64-71 GHz band clear of higher power FDS operations? The Commission seeks comment on whether, alternatively, the Commission should allow the proposed FDS operation across all of the 57-71 GHz band or some other segment of the band. If the Commission were to allow the proposed FDS operation across the entire 57-71 GHz frequency range under the proposed requirements discussed below—which include a duty cycle limit—should the Commission remove the current provision that permits operation in this band at 10 dBm EIRP with no duty cycle limit? Should the Commission modify the Commission's rules in any other respect? The Commission also seeks comment on the benefits or costs of these proposed changes with respect to 60 GHz authorized users. Parties that oppose these proposed rules should cite specific harms that they believe would result from changing the rules.

EIRP Limits. The current rules permit FDS devices to operate at a maximum 10 dBm EIRP. All of the waiver requests the Commission received requested a maximum of 13 dBm EIRP to provide greater accuracy and finer resolution imaging. Subsequent waiver requests to Google's waiver described the intended target detection to be either in the sub-millimeter range such as the breathing patterns of a child in a car seat, or as in the case of Leica Geosystems AG, thin cables as small as 2.5 mm in diameter; thus, requesters argue that 60 GHz FDS devices need higher power than specified in the rules, because the existing power levels do not allow the devices to provide the necessary accuracy in detection of small-size targets due to poor signal-to-noise ratio.

The Commission proposes to allow FDS devices to operate at no more than 20 dBm average EIRP. This proposed EIRP limit is higher than the level requested in the multiple waivers that the Commission received; however, it is consistent with ETSI EN 305 550. The Commission believes this EIRP level will promote additional growth for new FDS applications beyond those anticipated to be deployed under the Commission's issued and pending waiver requests. The Commission also believes that harmonization with other regions will likely increase efficiency for American manufacturers by reducing design and manufacturing costs. The Commission further believes that this EIRP limit will not cause harmful interference to authorized services in the band. These radars will operate at a comparatively much lower EIRP level than what is already permitted for communication devices (indoors and outdoors) in the same frequency band. Communication devices such as 60 GHz WLAN devices can operate at up to 40 dBm EIRP, as compared to the 20 dBm EIRP limit that the Commission is proposing for radars. The Commission notes that a WLAN device may already have to operate in the presence of signals from neighboring WLAN devices and other Part 15 devices operating at similar power levels; thus the proposed lower EIRP limit for FDS devices should have little or no effect on the operational environment that WLAN devices can expect under the Commission's rules. The Commission also observes that 60 GHz WLAN devices have operated at this EIRP limit ( i.e., 40 dBm average/43 dBm peak) for several years without causing harmful interference to other authorized services, such as the Passive EESS operating at 57-59.3 GHz. In addition, the IEEE 802.11 standards group's activity to define channel access protocols to allow transmission of radar signals alongside communication signals may allow coexistence of both signals in the 60 GHz band. The Commission seeks comment on the proposed EIRP level for FDS devices and on the Commission's tentative interference assessment. The Commission also seeks comment on the state of standards development — specifically, with respect to coexistence issues between radar signals and communications signals. Should the Commission specify any coexistence measures or requirements, such as listen-before-talk in its rules? Does the fact that many radars are mobile mean that they will not be used in close proximity to communication devices for extended periods of time, thus limiting any potential for causing interference to short durations? Further, the Commission seeks comment on the benefits or costs of the proposed change to the EIRP limit with respect to 60 GHz authorized users. How would this change, if adopted, benefit stakeholders, consumers and others? Parties that oppose these proposed rules should: Cite specific harms that they believe will result from changing the rules in the manner proposed, estimate the costs of such potential harms, and specify under what parameters they believe radar systems can coexist with communications systems in the band.

Because 60 GHz FDS devices will need to coexist with 60 GHz communications devices, the Commission also seeks comment on the state of development in the 60 GHz communications device ecosystem. What is the current state of deployment of 60 GHz communications systems? What use cases are supported by 60 GHz communications systems today, and what use cases are contemplated for these systems in the future? Do 60 GHz communications systems generally take advantage of the higher EIRP limits permitted under the Commission's rules? Facebook, Intel, and Qualcomm assert that the 60 GHz band will be used by unlicensed devices for latency-sensitive augmented reality/virtual reality/extended reality (AR/VR/XR) applications. Is this likely to be a widely-deployed use case in the 60 GHz band? Do AR/VR/XR applications present distinct interference scenarios or raise other considerations compared to other 60 GHz WLAN applications? Do 60 GHz unlicensed communications systems operate throughout the entirety of the 60 GHz band? Could these systems operate effectively in a subsection of the overall band, for example, the 64-71 GHz band segment?

Transmitter Conducted Output Power Limit. The rules currently permit FDS devices to operate at a maximum -10 dBm transmitter conducted output power, whereas 60 GHz WLAN devices are allowed up to 27 dBm. The Commission proposes to allow FDS devices to operate at a maximum 10 dBm conducted output power, consistent with the waivers the Commission has already granted in the band. The Commission notes that the ETSI standard specifies the conducted output power as a mean (average) limit, rather than a peak limit as the Commission's rules do. The Commission seeks input on whether the Commission should consider average transmitter conducted output power limit and what impact this would have on the different types of FDS devices ( e.g., FMCW, pulse, etc.). On the other hand, the Commission notes that for 60 GHz transmitters, including communications and radar devices, that are implemented at the chip level, access to the transmitter output port may not be available, rendering a demonstration of compliance to this requirement burdensome. The Commission seeks input on whether this requirement is necessary in view of the technological evolution of such system-on-chip devices. A 10 dBm transmitter conducted output power limit along with a 20 dBm EIRP limit implies a limit on transmit antenna gain. The Commission inquires as to whether the transmitter conducted output power limit instead should be replaced by an antenna gain limit. If so, what limit would be appropriate? Should an antenna gain limit be applied to all 60 GHz transmitters, including 60 GHz communication devices, since these devices also have transmitters implemented at the chip level, and thus would encounter the same measurement difficulties? The Commission also seeks comment on whether a transmitter conducted output limit is necessary for 60 GHz transmitters, including communications and radar devices. The Commission seeks input on this issue in order to develop a comprehensive record. The Commission also seeks comment on the benefits or costs of the proposed change to the transmitter conducted output power with respect to 60 GHz authorized users. Proponents of such a change should provide specific details regarding measurement difficulties than might be encountered for system-on-a-chip devices as well as details on what maximum antenna gain they believe should be specified and whether there are circumstances under which that gain can be exceeded ( e.g., with a corresponding EIRP reduction).

Power Spectral Density Limit. The existing rules do not restrict the power spectral density for 60 GHz devices. The Commission proposes to require a 13 dBm/MHz EIRP power spectral density on FDS devices, to be consistent with the ETSI limit. This is the same restriction the Commission placed on Google and other parties operating FDS devices pursuant to Commission issued waivers. The Commission seeks comment on the proposed power spectral density limit. Is there a need for a power spectral density limit, and if so, what is the appropriate limit and for which types of devices should it apply? For example, would a power spectral density limit be necessary for FDS devices using frequency-modulated continuous wave (FMCW), or pulse/impulse transmissions? Although the Commission is mindful of harmonizing the technical rules that the Commission adopts with the existing ETSI standards, the Commission seeks input and technical analyses on the utility of this proposed requirement. FMCW sensors generally modulate their transmission over a frequency band in order to obtain the necessary target resolution. At any given time, FMCW sensor emissions are limited to a small portion of the spectrum. As such, implementing a PSD limit appears to be an appropriate measure for spectrum sharing for these types of sensors. The Commission seeks comment on whether a PSD limit alone is a sufficient power limit to facilitate sharing between field disturbance sensors and communication devices. Are there other FDS modulation techniques that would benefit from a power spectral density limit? The Commission also seeks comment on the benefits or costs of the proposed power spectral density limit for FDS devices with respect to 60 GHz authorized users. If the Commission does not adopt a power spectral density limit, what are the ramifications if devices are permitted to operate with all of their energy concentrated in a narrow bandwidth? Parties that oppose these proposed rules should cite specific harms that they believe would result by imposing a power spectral density requirement.

The Commission notes that the EIRP, transmitter conducted output power, and power density limits proposed here are consistent with those stipulated by the ETSI standard EN 305 550. This standard has been in existence since 2014, thus these limits have been tested and deployed in other geographic regions with similar spectrum allocations. In fact, ETSI released an updated draft of this standard in 2017 and did not recommend changes to the limits. Thus, it appears that these proposed power levels have been successful in providing an environment that supports robust sharing of the 60 GHz spectrum among various users as the Commission is proposing to allow here. The Commission seeks comment on this view. The Commission also seeks input on the development status of the draft 2017 ETSI EN 305 550 Standard with respect to the technical parameters the Commission is proposing herein. The Commission understands that ETSI is undertaking a major revision of EN 305 550 to address receiver performance parameters, which the 2014 Harmonized version did not address. The Commission seek comment on the status of this revision and what changes to the specification are anticipated. In light of this ongoing revision, are changes to the Commission's proposed rules warranted? To develop a comprehensive record, the Commission seeks input on current or planned standards, both domestic and international, regarding operation of FDS devices in the 57-71 GHz band, or any subset frequency band thereof. In addition, because radar resolution is generally dependent on bandwidth, the Commission seeks comment on whether the proposed rules will provide the sufficient resolution over the ranges needed for the applications envisioned for radars in the 60 GHz band.

Peak vs. Average Power Limits. The Commission notes that, except for fixed FDS devices that contain their operating bandwidth within the 61.0-61.5 GHz band, the existing rules for FDS devices do not specify an average power limit, but instead only a peak or maximum power limit, unlike the power limits for 60 GHz communications devices, where the Commission specifies both an average EIRP and a peak EIRP of 3 dB above the average limit. The Commission observes that 60 GHz FDS and radar devices will mostly use constant-amplitude continuous-wave (CW), frequency-modulated continuous wave (FMCW), or pulse/impulse transmissions. If the limits are applied only during active transmission ( i.e., only over the chirp or pulse duration), then the peak and the average signals will be equivalent. The Commission further notes that by specifying the limits only in terms of average power, potential measurement instrument desensitization phenomena can be avoided. The Commission proposes to define the power limits for FDS/radar devices in terms of average power and seek comment on the benefits of such a measurement. Are there consequences to specifying average power measurements rather than peak with respect to the potential to cause harmful interference to authorized users, or for unlicensed radar systems to coexist with unlicensed communications systems? Those who believe that such a change might result in harmful interference should estimate the costs of such interference. Would this change impact passive EESS users in the 57-59.3 GHz band? Are there are other possible FDS/radar modulation techniques that would make requiring a peak power limit necessary?

The existing rules do not place a duty cycle restriction on 60 GHz devices. Similarly, the ETSI EN 305 550 standard does not stipulate a duty cycle limit for 60 GHz short-range devices; however, the standard does specify requirements for 60 GHz receivers to ensure that they can adequately handle interferer signals. The Commission imposed a 10% duty cycle limit in the Google Waiver Order and subsequent waivers for 60 GHz FDS devices operating under higher emission limits than permitted in the rules. This 10% duty cycle is based on a maximum 3.3 ms transmission time in every 33 ms interval and was derived from Google's 2018 final agreement with stakeholders from the WLAN communications industry whose technology operates in the 60 GHz spectrum. The Commission proposes to require the same duty cycle restriction as that imposed in the multiple waivers.

However, the Commission notes that in some of the waiver requests, parties asked for a longer transmission time frame. The Commission further notes certain parties recommend modifying the duty cycle restriction adopted in the waivers to read that “any radar off-time period between two successive radar pulses that is less than 2 ms shall be considered `on time' for purposes of computing the duty cycle.” These parties express concern that the duty cycle requirement in the waivers will not promote coexistence with communications applications, including AR/VR/XR communication devices which require very high data throughput and very low latency. They point out that the 10% duty cycle requirement could lead to certain radars transmitting very short bursts (in micro-second durations) followed by similarly short silent periods (also in the micro-second durations) during the entire total 33 ms interval. This would result in interspersed, non-contiguous micro-second short silent intervals during which 60 GHz AR/VR communication devices may have difficulty accessing the spectrum due to the briefness of the radars' quiet intervals; yet, when added together, the total amount of transmission time and silent intervals would comply with the “10% on, 90% off” definition of a 10% duty cycle.

On the other hand, other parties indicate that “regulatory guarantees of such latency targets would substantially degrade performance of FMCW radars, which generally need to transmit frequent chirps (to prevent velocity aliasing) and span a sufficient burst time to enable good velocity resolution.” These parties argue that a duty cycle rule restricting radars to “guarantee that at least 99% of WiGig packets experience on-air latency of no more than a few milliseconds” would be unnecessary due to “radars' low transmission power, low potential to generate interference, and antenna directionality, as well as propagation loss in the 60 GHz band.” A regulatory latency target will have a similar impact on pulse radars as well, as the radar's observable maximum velocity and velocity resolution both depend on the pulse repetition frequency. As such, should duty cycle be defined differently for radar systems with different modulation techniques (FMCW, pulse, etc.) operating on different time scales? On the other hand, in view of these apparent limitations with respect to maximum velocity and velocity resolution, is duty cycle a suitable parameter for regulation? Can limiting peak and average power within a defined band be a better approach than specifying a duty cycle? If regulating the duty cycle is necessary, then how should it be defined? The Commission seeks comment and technical input on appropriate parameters for regulation including definition/characterization of the duty cycle with respect to radar devices. The Commission seeks input on this issue to maximize the efficiency of both communications and radar operations without unduly degrading the operating environment for unlicensed users of the band or causing harmful interference to authorized users in the band. The Commission also seeks comment on whether radar signals could mimic the spectrum access protocols of communications devices to appear like any other communication signal thereby making a duty cycle restriction unnecessary. The Commission seeks comment on whether the recent activities in the IEEE standards group examining channel access protocols that would enable the same 60 GHz system transmitting communication signals to transmit radar signals address this issue. Commenters should provide technical detail, studies and analyses supporting their position on how a duty cycle requirement for FDS devices should be specified.

The Commission notes that the 60 GHz Co-existence Study Group's activities have been geared toward developing “a consensus approach” to a framework for a potential Commission rulemaking, with discussions concerning duty cycles; transmission on- and off-times; operating bandwidth and channelization ( e.g., radar implementations with 2-gigahertz, 4-gigahertz, 7-gigahertz-bandwidth); contention-based protocols; transmit power; and antenna gain.” Although representatives from the 60CSG recently informed us that the group has yet to achieve consensus on a recommended regulatory approach to accomplish coexistence among the diverse operations in the 60 GHz band, they also described several potential “frameworks” for further unlicensed development in this frequency range. These include establishing a single rule for radar operations in the 57-64 GHz portion of the 60 GHz band, establishing a rule based on average power and/or average PSD limits that draws from the ETSI EN 305 550 standard, taking a channelization approach to radars in the 60 GHz band, and amending the rules to reflect different categories of technologies that operate in the 60 GHz band, such as allowing for different operating parameters when operating in a vehicle, indoors, or outdoors, or between implementations that are fixed, mobile, or portable. The Commission seeks comment on the 60 GHz CSG filing. What are the technical trade-offs and cost/benefits for each framework? What parts of these four frameworks can the Commission incorporate into the Commission's final rules to optimize the benefits and minimize the costs to all authorized 60 GHz users, and help us achieve the Commission's objective of fostering a greater variety of unlicensed uses in the 60 GHz band? The Commission also seeks input on the work results of any other coexistence standards activities (international and domestic) and/or cooperative works between communications and FDS study groups that may have taken place, and how such work may inform the Commission's proposals to expand unlicensed use of the band.

Because the Commission is proposing to permit fixed and mobile radars to operate in the 60 GHz band, the Commission believes it is no longer necessary to qualify an application as SRIMS to operate as a mobile radar under § 15.255. The Commission therefore proposes to remove this designation from the rules and replace it with the general designation of FDS devices for both fixed and mobile radars. As indicated, when adopting the rule for SRIMS, the Commission stated that it intended it to be a narrow application of mobile radar use, while continuing to prohibit general mobile radar use in § 15.255. As such, the Commission did not adopt a definition for SRIMS. Over the last few years, there has been much confusion on which 60 GHz mobile and fixed radar applications should qualify under the SRIMS designation. The Commission also requested input in response to the multiple 60 GHz waiver requests but was not able to make a bright-line determination for certain applications. The Commission seeks comment on the proposal to remove the SRIMS exception from § 15.255 and replace it with general rules covering all FDS devices. The Commission also seeks comment on the benefits or costs of this proposal with respect to 60 GHz authorized users. Parties that oppose removing the SRIMS designation from the rules should cite specific harms that they believe would result from making this change to the rules.

The Commission next addresses § 15.255(c)(2) of its rules, which permits a fixed FDS device to operate at up to 40 dBm average EIRP and at up to 43 dBm peak EIRP in the 61.0-61.5 GHz band segment. Under this rule, a fixed FDS device's occupied bandwidth must be fully contained within the 500-megahertz bandwidth of the 61.0-61.5 GHz band; and it must attenuate its signals outside the 61.0-61.5 GHz band, but still within the 57-71 GHz band, to less than 10 dBm average EIRP and 13 dBm peak EIRP. The Commission believes that this rule is valuable insofar that it permits the operation of fixed FDS devices at power levels as high as communication devices, albeit restricted to a more narrow operating bandwidth, without being restricted to a specific duty cycle limit. As such, the Commission proposes to retain § 15.255(c)(2) but also seeks comment on whether the Commission should expand this provision to apply to both fixed and mobile FDS applications. The Commission seeks comment on how useful this 500-megahertz bandwidth provision has been in practice in facilitating FDS device deployment, given that radars typically achieve better resolution with a wider bandwidth. What FDS applications currently are being enabled using the higher power levels permitted in the 61.0-61.5 GHz band? Could the Commission expect that expanding § 15.255(c)(2) would result in new mobile FDS applications, and if so would they perform functions that otherwise would not be possible under the existing rules? How would expanding the rule affect the spectrum environment for all users of the band? What costs and benefits would be associated with such an action? In particular, the Commission seeks comment and technical analyses on these issues to develop a comprehensive record.

Section 15.255(c)(2) requires the average power of any emission outside of the 61.0-61.5 GHz band, measured during the transmit interval, to be less than or equal to 10 dBm, and similarly the peak power of any emission to be less than or equal to 13 dBm. Because no measurement bandwidth is currently specified in the rule, the Commission seeks comment on whether this requirement is sufficiently specific. Should these limits be specified in terms of power spectral density (PSD)? If so, what are the required peak and average power densities outside of the 61.0-61.5 GHz band? The reference bandwidth that the Commission often uses for specification of the spurious domain emission levels for frequency bands above 1 GHz is 1 megahertz. The Commission seeks comment on the appropriate reference bandwidth for PSD for emission outside of the 61.0-61.5 GHz band. Are any other additional requirements necessary?

To the extent that the Commission retains provisions in § 15.255 that specifically permit fixed FDS operations, the Commission seeks comment on how the Commission should interpret “fixed” and whether the Commission should incorporate a specific definition for the term into the Commission's Part 15 rules. When OET granted the automotive waivers, it noted that the Commission did not specifically address whether the rule permits something that is inherently mobile (such as an automobile) to be treated as fixed in certain circumstances, and left any determination of what constitutes “fixed” and “mobile” operation under the rule for separate consideration. A review of the 1998 Report and Order that first permitted fixed FDS use in the band would suggest that the Commission was anticipating a narrow set of applications that would be used in industrial settings where the equipment would rarely if ever be moved. However, in light of the wide range of potential FDS applications that now have been identified for the 60 GHz band and the Commission's general inclination to provide as expansive an opportunity for unlicensed operations in a particular band as is practical, the Commission tentatively concludes that a broader view is appropriate. The Commission tentatively concludes that the Commission should interpret fixed FDS operations as those instances where an FDS device is stationary and is operating at a discrete location for an indefinite— i.e., more than mere transitory—period. The Commission envisions this interpretation would allow for a device that is used in a household and easily moved from room to room to operate in different parts of the residence, but that an automotive-mounted radar that operates when the car is stopped while the ignition is engaged would be too transitory to qualify. The Commission seeks comment on this proposal. Does it provide a sufficient bright-line rule for device operation? Will it provide other unlicensed and authorized users in the 60 GHz band with sufficient confidence that they will be able to identify and resolve any degradation of the operational environment caused by these fixed users? Are there other interpretations that are more appropriate for defining fixed FDS operations?

The Commission's third area of discussion relates to whether the Commission could permit FDS devices to operate at a higher power throughout the entire 57-71 GHz band. In its recommendation, the TAC suggests that the Commission explores the possibility of allowing radars that incorporate a sensing technology such as listen-before-talk (LBT) to operate at the same emission limits as WLAN devices in the band, i.e., 40 dBm EIRP and 27 dBm transmitter conducted output power. The Commission seeks input regarding the effect such higher power levels would have on authorized users who are entitled to interference protection, as well as how those power levels would affect the ability of unlicensed radar systems to coexist with unlicensed communications systems. Are these EIRP and transmitter conducted output power levels appropriate for radar applications, given the implied high antenna gain/directivity? What antenna gain do radars need in various applications? Are mobile radar applications limited by power consumption such that they would not be able to leverage these higher emission limits? With spectrum sensing capabilities, would a duty cycle restriction be necessary? The Commission seeks input and feedback as well as recommendations on these issues. Commenters should provide technical details and/or studies to show that it is practical for radars to operate at up to 40 dBm EIRP without causing harmful interference to existing authorized services in the band. The Commission notes that the 2021 TAC Recommendation only mentions the listen-before-talk technique. Are there other spectrum contention avoidance techniques that would serve the same purpose and how effective are they? What are the costs and benefits of such techniques? Have there been any completed or ongoing studies regarding coexistence between radars and authorized 60 GHz users and, if so, what are the results and recommendations? Should the same spectrum sensing technique be required for all devices operating in the 57-71 GHz band with the average power limit of 40 dBm EIRP? Have industry standards groups such as the 802.11 Standards Committee considered the use of spectrum sensing techniques for 60 GHz unlicensed devices? Will there be a need to regulate energy detection and observation time for LBT sensing? If so, what are the appropriate limits? Will usage of LBT provide higher aggregate capacity? If so, does it justify the higher complexity necessary to support LBT? The Commission solicits input on these issues to develop a comprehensive record on these matters.

The Commission does not propose to alter the existing restrictions relating to the use of 60 GHz band unlicensed devices on board aircraft which are contained in § 15.255(b) of its rules, but the Commission nevertheless seeks comment as to whether the Commission should expand the situations where such use is permissible. Currently, such operation is limited to when the aircraft is on the ground, and, for airborne use, only in closed exclusive communication networks within the aircraft. To account for the important interest in protecting passive EESS users that operate in the 57-59.3 GHz band, the rule limits this use to aircraft with a high RF attenuation body ( e.g., commercial airliners), and cannot be used in wireless avionics intra-communication applications where external structural sensors or external cameras are mounted on the outside of the aircraft structure.

The Commission does not believe that retaining the existing provisions regarding in-aircraft use of unlicensed devices would hinder the initial successful deployment of new applications and devices under the Commission's proposed rules. Many of the use opportunities that have been identified to date—such as inside and outside vehicles, and in personal safety, medical imaging, home automation, environmental control, and robotic appliances devices, for example—are not dependent on use on board an aircraft. Compliance options also exist for portable electronic devices that may be brought aboard airplanes. These could include, for example, activation of “airplane mode” during flight or the use of sensors to disable operations when the device is above a particular height above ground. The Commission seeks comment on this tentative determination.

Currently the Commission has only authorized 60 GHz radars to operate on board aircraft beyond the uses permitted in the rules via two limited situations. Both were in conjunction with waiver grants that carefully evaluated how specific devices would be deployed in well-defined use cases. Leica Geosystems AG may operate a 60-64 GHz radar on an unmanned aircraft, but with very restrictive conditions on the number of deployed devices. The Google Soli radar incorporated into a smartphone ( e.g., the Google Pixel) allows control of a smartphone via gestures without touching the phone, and is not intended to be part of the aircraft communication network.

Although the Commission proposes to retain the existing rule, the Commission nevertheless seeks comment on whether the Commission should allow for expanded use of 60 GHz radars on board aircraft and, if so, with what requirements and restrictions. Given that the Commission's fundamental consideration has been and remains how to ensure that passive EESS operations in the 57-59.3 GHz band continue to be protected from harmful interference that could be caused by airborne use of unlicensed 60 GHz devices, could airborne radar use be permitted above 59.3 GHz? The Commission is not aware of any reports of harmful interference being caused by Google Soli devices during airborne use. Could the Commission permit 60 GHz radars to operate on board aircraft for limited uses such as when incorporated into smartphones or similar portable electronic devices that may be carried by air travelers? Would the Commission need to limit such use to the power levels associated with the Google Soli waiver, which operates at lower power levels than those the Commission is proposing for 60 GHz radars? Are there other narrow use cases that the Commission should allow? For example, could the Commission's rules be modified to allow an aircraft's entertainment system's in-seat display monitors to incorporate radars that could be controlled remotely by air travelers' gestures? Commenters addressing expanded airborne use should provide detailed technical analyses, research, studies, etc. supporting potential recommendations to address whether harmful interference to authorized users in the band would result or if such systems can coexist and under what conditions. Would any adverse effects be anticipated from 60 GHz radars operating on aircraft? Would the risk of harmful interference occurring to passive EESS be minimal from radars in aircraft with high RF attenuation characteristics? What are the cost and benefits of such use?

In addition, the Commission seeks comment on the ramifications of permitting unlicensed 60 GHz radar operation on board aircraft with little or no RF attenuation characteristics, such as unmanned aerial systems (UAS)/drones and light and personal aircraft. The Commission has given a limited waiver to Leica Geosystems AG to operate a radar in the 60-64 GHz band on board a UAS to provide visual inspection of structures in engineering and scientific applications to prevent the UAS from colliding with the structure or other fixed objects that it is surveying. The Commission has also received informal inquiries indicating an interest in deploying unlicensed 60 GHz radar for applications involving, as an example, use on board crop-spraying aircraft. Commenters who support expanding the types of aircraft upon which unlicensed 60 GHz devices could be deployed should address how such use would not undermine the objective of preventing harmful interference to EESS operations in the 57-59.3 GHz portion of the band.

Compliance testing of modulated CW ( e.g., FMCW) and pulse/impulse-based radar devices can be complex and typically requires careful consideration to ensure the proper characterization of technical parameters such as transmit bandwidth, output power and unwanted emissions levels in the out-of-band and spurious domains. As such, the Commission seeks comment on methodologies for performing such tests to obtain the data necessary to demonstrate compliance with the specified technical requirements for the types of radars anticipated to operate under § 15.255 rules. For example, should transmission bandwidth be represented only by the chirp or pulse specifications or should it be expressed as a measured occupied bandwidth, 20-dB bandwidth, or other representation? Similarly, should peak power measurements be avoided to eliminate potential for inaccurate amplitude results due to measurement instrumentation desensitization? Measured power levels for radio frequency (RF) pulses that are frequency modulated (chirped) vary as a function of the bandwidth in which the measurement is performed; if chirped pulses cause RF interference, the power levels of the pulses in victim receivers will likewise vary as a function of receiver bandwidth. NTIA Technical Report TR-12-488 provides both heuristic and rigorous derivations of the relationships among chirped pulse parameters and the measured peak and average power levels of chirped pulses as a function of measurement bandwidth. These relationships may be best understood via a single graph (Figure 3) presented in this report. This report supplements NTIA Technical Reports TR-05-420, TR-10-465 and TR-10-466, in which the formula for minimum bandwidth needed for measurement of full peak power in chirped pulses is presented but not derived. The Commission seeks comment on NTIA's technical report and its applicability to measurements of chirped signals.

The Commission proposes to exempt FMCW and other similar swept-frequency radars from the § 15.31(c) requirement to stop the frequency sweep when measuring the relevant technical parameters. Stopping the sweep is physically impractical for most of these types of devices and can result in inaccurate measurements. In addition, the Commission proposes to remove the § 15.255(c)(4) requirement to use an RF detector with a detection bandwidth that encompasses the 57-71 GHz frequency range for performing peak power measurements. The Commission believes that this requirement is superseded by the more recent inclusion of § 15.255(i), which sets out a flexible approach toward measurement that can be adapted more effectively as the technology of devices and test instrumentation evolve. Finally, the Commission proposes to specify that the provision of § 15.35(c) that requires calculating average field strength over a complete pulse train or 100 milliseconds is not applicable to pulsed or burst radars that operate in the 60 GHz band. This measurement requirement was originally designed for low frequency pulse-code modulated devices such as garage door openers and the Commission believes it is not appropriate for high frequency radars. The Commission seeks comment on these proposals.

Initial Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning potential rule and policy changes contained in this Notice of Proposed Rulemaking.

Initial Paperwork Reduction Act Analysis. This Notice of Proposed Rulemaking does not contain potential new or revised information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Ex Parte Rules—Permit-But-Disclose. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. Memoranda must contain a summary of the substance of the ex parte presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the rules. In proceedings governed by § 1.49(f) of the rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Additional Information. For additional information on this proceeding, contact Anh T. Wride, anh.wride@fcc.gov, (202) 418-0577, Office of Engineering and Technology, Technical Rules Branch; or Thomas Struble at (202) 418-2470 or Thomas.Struble@fcc.gov, Office of Engineering and Technology, Office of the Chief Engineer.

Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 1 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rule Making ( NPRM ). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided in the item. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 2 In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register . 3

The NPRM addresses issues raised in multiple waiver requests by various field disturbance sensor (FDS)/radar manufacturers and is partly in response to a recommendation from the Technical Advisory Committee (TAC) that the Commission modify the rules for unlicensed 60 GHz devices in a number of respects. The TAC recommends that the FCC initiates a rulemaking proceeding addressing potential areas of concern in the 60 GHz band by requesting comment and response to the following questions: (1) Should FCC rules allow greater radiated power for radar applications than currently permitted?; (2) Should the parameters for Google Soli, for which other entities have filed “me-too” requests, be included in the rules?; (3) What changes to the recent waiver parameters are needed to improve sharing with communications applications?; (4) Should the FCC require 60 GHz communication applications (and radar applications) to use a contention-based protocol?; and (5) Should radar applications that perform listen-before-talk be allowed to use the same power levels as communications applications in this band?

The proposed action is taken pursuant to sections 4(i), 201, 302, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 302a, 303.

The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 4 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  5 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 6 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 7

Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The proposed rules pertain to manufacturers of unlicensed communications devices. The appropriate small business size standard is that which the SBA has established for radio and television broadcasting and wireless communications equipment manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. 8 Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. 9 The SBA has established a small business size standard for this industry of 1,250 employees or less. 10 U.S. Census Bureau data for 2012 show that 841 establishments operated in this industry in that year. 11 Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. 12 Based on this data, we conclude that a majority of manufacturers in this industry are small.

Unlicensed 60 GHz devices operating in the 57-71 GHz frequency band are regulated under section 15.255 of the Commission's rules. The proposed rules in this NPRM pertain to field disturbance sensors ( i.e., radar devices) that may be fixed or mobile. The proposed rules increase the allowable transmitted power levels to promote short-range radar applications without application restriction on operating environments, i.e., they may operate indoors or outdoors, in fixed or mobile applications, and be incorporated into any device, e.g., personal safety, industrial and consumer robotics, home/transportation automation ( e.g., autonomous vehicles), environmental control, health care monitoring. Specifically, the NPRM: (1) Proposes to permit field disturbance sensors in the 57-64 GHz band to operate with up to 20 dBm average EIRP, 10 dBm transmitter conducted output power, 13 dBm/MHz average EIRP power spectral density and a 10% duty cycle in every 33 millisecond (ms) interval; (2) investigates the potential for mobile FDS devices to operate in the 61.0-61.5 GHz band at the same 40 dBm EIRP at which fixed FDS devices currently are permitted to operate; (3) ask whether the Commission could permit radar devices that incorporate listen-before-talk, spectrum sensing, or other methods of co-existence, to operate across the entire 57-71 GHz band at the same power level ( i.e., 40 dBm EIRP) as currently is permitted for 60 GHz communication devices; and (4) ask whether any of the provisions proposed for FDS operation should be more broadly applied to all Part 15 devices operating in the 57-71 GHz band.

Most RF transmitting equipment, including 60 GHz devices, must be authorized through the certification procedure. Certification is an equipment authorization issued by a designated Telecommunication Certification Body (TCB) based on an application and test data submitted by the responsible party ( e.g., the manufacturer or importer). 13 Existing FDS devices operating under section 15.255 of the Commission's rules are already subject to the Certification procedure. The NPRM does not propose to change the authorization procedure for 60 GHz devices, but it does seek comment on methodologies for performing tests to obtain the data necessary to demonstrate compliance with the technical requirements for the types of radars anticipated to operate under the modified rules. In addition, the NPRM proposes to exempt frequency-modulated continuous wave and other swept frequency radars from the section 15.31(c) requirement to stop the frequency sweep when measuring the relevant technical parameters;  14 (2) remove the section 15.255(c)(4) requirement to use an RF detector with a detection bandwidth that encompasses the 57-71 GHz frequency range for performing peak power measurements;  15 and (3) not apply the provision of section 15.35(c) that requires calculating average field strength over a complete pulse train or 100 milliseconds to pulsed or burst radars that operate in the 60 GHz band. 16

The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”  17

The rule changes proposed in the NPRM for higher power to field disturbance sensors and radars would provide greater flexibility to 60 GHz device operations. As these proposed changes provide greater flexibility, the Commission does not believe they will have a significant negative impact on small entities. In fact, the proposed rules could benefit small entities. As operation of 60 GHz devices do not require a license, small entities are able to operate 60 GHz devices without the cost or inconvenience of obtaining a license. In addition, the proposed rules partly align the technical parameters for FDS/radar devices with international standards, which could save cost to small entities who would now be able to avoid having to create region-specific product designs.

None.

Ordering Clauses. It is ordered , pursuant to the authority found in sections 4(i), 201, 302, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 302a, 303, and §§ 1.407 and 1.411 of the Commission's rules, 47 CFR 1.407 and 1.411, that this Notice of Proposed Rulemaking is adopted , as set forth above.

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

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 15 as follows: