On July 26, 2016, we published in the Federal Register (81 FR 49112-49137, Docket No. APHIS-2011-0009) a proposal  1 to amend the regulations relating to the Animal and Plant Health Inspection Service's (APHIS) administration and enforcement of the Horse Protection Act.

We solicited comments concerning the proposed rule for a period of 60 days ending September 26, 2016. We subsequently extended the comment period by an additional 30 days, to October 26, 2016. We also held five public listening sessions prior to the close of the comment period.

We received 130,975 comments on the proposed rule through electronic submission, U.S. mail, and courier, as well as comments included in the transcripts from the public hearings. The comments were from State and Federal elected officials, including current and former U.S. Senators and Representatives, State agricultural agencies, farm bureaus, gaited horse organizations, trotting horse federations and organizations, other domestic and foreign horse industry organizations, veterinarians and veterinary associations, horse rescue and animal welfare advocacy organizations, horse owners and trainers, farriers, small business owners, and the general public. Commenters addressed a wide range of proposal topics, including horse inspection practices and penalties, licensing and training of inspectors, the use of action devices, substances, and other practices.

In 2021, the National Academy of Sciences (NAS) reviewed methods for detecting soreness in horses and published a report  2 of their findings. The report examined the inspection methods that Designated Qualified Persons use for identifying soreness in walking horses, new and emerging approaches for detecting pain, and use of the scar rule in determining compliance with the Horse Protection Act, and made a number of science-based recommendations regarding revisions to APHIS' Horse Protection Act program and associated regulations. We have reviewed the July 26, 2016 proposed rule in light of the NAS report, and determined that the rule does not sufficiently address the report's findings.

Further, it has been more than 5 years since the proposed rule was published and we would likely need to update the underlying data and analyses that supported the proposed rule.

Therefore, for these reasons, we are withdrawing the July 26, 2016 proposed rule referenced above, and will issue a new proposed rule that incorporates more recent findings and recommendations, including the NAS report. The new rulemaking process will allow the public to comment on these and other important issues before the rule is finalized.

The Energy Policy and Conservation Act, as amended (“EPCA”), 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 the 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 notice of proposed rulemaking (“NOPR”).

EPCA directs DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSLs. 3 (42 U.S.C. 6295(i)(6)(A)-(B)) For the first rulemaking cycle, EPCA directs DOE to initiate a rulemaking process prior to January 1, 2014, to determine whether: (1) To amend energy conservation standards for GSLs and (2) the exemptions for certain incandescent lamps should be maintained or discontinued. (42 U.S.C. 6295(i)(6)(A)(i)) The rulemaking is not limited to incandescent lamp technologies and must include a consideration of a minimum standard of 45 lumens per watt for GSLs. (42 U.S.C. 6295(i)(6)(A)(ii)) EPCA provides that if the Secretary determines that the standards in effect for GSILs should be amended, a final rule must be published by January 1, 2017, with a compliance date at least 3 years after the date on which the final rule is published. (42 U.S.C. 6295(i)(6)(A)(iii)) The Secretary must also consider phased-in effective dates after considering certain manufacturer and retailer impacts. (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))

Pursuant to its statutory authority, DOE published a notice of proposed rulemaking (“NOPR”) 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, 14629-30 (Mar. 17, 2016). In the March 2016 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 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, which was originally adopted in 2011 and readopted and extended continuously in multiple subsequent legislative actions, 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 (“January 2017 Definition Final Rules”). 82 FR 7276; 82 FR 7322. The January 2017 Definition Final Rules amended the definitions of GSIL and GSL by bringing certain categories of lamps that had been excluded by statute from the definition of GSIL within the definitions of GSIL and GSL. DOE used two final rules in 2017 to amend the definitions of GSIL and GSLs by addressing the majority of the definition changes in one final rule and addressing the exemption for IRLs in the second final rule. These two rules were issued simultaneously, with the first rule eschewing a determination regarding the existing exemption for IRLs in the definition of GSL and the second rulemaking discontinuing that exemption from the GSL definition. 82 FR 7276, 7312; 82 FR 7322, 7323. As in the October 2016 NOPDDA, DOE stated that the January 2017 Definition 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. 82 FR 7276, 7277; 82 FR 7322, 7324 ( See also 42 U.S.C. 6295(i)(6)(A)(i)(II)). That is, neither of the two final rules issued on January 19, 2017, established energy conservation standards applicable to GSLs. DOE explained that the Appropriations Rider prevented it from establishing, or even analyzing, standards for GSILs. 82 FR 7276, 7278. Instead, DOE explained that it would either impose standards for GSLs in the future 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, 7277-7278. The two final rules were to become effective as of January 1, 2020.

On March 17, 2017, the National Electrical Manufacturer's Association (“NEMA”) filed a petition for review of the January 2017 Definition Final Rules in the U.S. Court of Appeals for the Fourth Circuit. National Electrical Manufacturers Association v. United States Department of Energy, No. 17-1341. NEMA claimed that DOE “amend[ed] the statutory definition of `general service lamp' to include lamps that Congress expressly stated were `not include[d]' in the definition” and adopted an “unreasonable and unlawful interpretation of the statutory definition.” Pet. 2. Prior to merits briefing, the parties reached a settlement agreement under which DOE agreed, in part, to issue a notice of data availability requesting data for GSILs and other incandescent lamps to assist DOE in determining whether standards for GSILs should be amended (the first question of the rulemaking required by 42 U.S.C. 6295(i)(6)(A)(i)).

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, i.e., whether to amend energy conservation standards for general service lamps, 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 re-consider 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. 84 FR 3120, 3122 ( See also 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 Definition Final Rules. Id.

On February 11, 2019, DOE published a NOPR proposing to withdraw the revised definitions of GSL, GSIL, and the new and revised definitions of related terms that were to go into effect on January 1, 2020 (“February 2019 Definition NOPR”). 84 FR 3120. In a final rule published September 5, 2019, DOE finalized the withdrawal of the definitions in the January 2017 Definition Final Rules and maintained the existing regulatory definitions of GSL and GSIL, which are the same as the statutory definitions of those terms (“September 2019 Withdrawal Rule”). 84 FR 46661. The September 2019 Withdrawal Rule revisited the same primary question addressed in the January 2017 Definition Final Rules, namely, the statutory requirement for DOE to determine whether “the exemptions for certain incandescent lamps should be maintained or discontinued.” 42 U.S.C. 6295(i)(6)(A)(i)(II) (See also 84 FR 46667). In the rule, DOE also addressed its interpretation of the statutory backstop at 42 U.S.C. 6295(i)(6)(A)(v) and concluded the backstop had not been triggered. 84 FR 46663-46664. DOE reasoned that 42 U.S.C. 6295(i)(6)(A)(iii) “does not establish an absolute obligation on the Secretary to publish a rule by a date certain.” 84 FR 46663. “Rather, the obligation to issue a final rule prescribing standards by a date certain applies if, and only if, the Secretary makes a determination that standards in effect for GSILS need to be amended.” Id. DOE further stated that, since it had not yet made the predicate determination on whether to amend standards for GSILs, the obligation to issue a final rule by a date certain did not yet exist and, as a result, the condition precedent to the potential imposition of the backstop requirement did not yet exist and no backstop requirement had yet been imposed. Id. at 46664.

Similar to the January 2017 Definition Final Rules, the September 2019 Withdrawal Rule clarified that DOE was not determining whether standards for GSLs, including GSILs, should be amended. DOE stated it would make that determination in a separate rulemaking. Id. at 46662. DOE initiated that separate rulemaking by publishing a notice of proposed determination (“NOPD”) on September 5, 2019, regarding whether standards for GSILs should be amended (“September 2019 NOPD”). 84 FR 46830. In conducting its analysis for that notice, DOE used the data and comments received in response to the August 2017 NODA and relevant data and comments received in response to the February 2019 Definition NOPR, and DOE tentatively determined that the current standards for GSILS do not need to be amended because more stringent standards are not economically justified. Id. at 46831. DOE finalized that tentative determination on December 27, 2019. 84 FR 71626 (“December 2019 Final Determination”). DOE also concluded in the December 2019 Final Determination that, because it had made the predicate determination not to amend standards for GSILs, there was no obligation to issue a final rule by January 1, 2017, and, as a result, the backstop requirement had not been imposed. Id. at 71636.

Two petitions for review were filed in the U.S. Court of Appeals for the Second Circuit challenging the September 2019 Withdrawal Rule. The first petition was filed by 15 States, 5 New York City, and the District of Columbia. See New York v. U.S. Department of Energy, No. 19-3652. The second petition was filed by six organizations  6 that included environmental, consumer, and public housing tenant groups. See Natural Resources Defense Council v. U.S. Department of Energy, No. 19-3658. The petitions were subsequently consolidated. Merits briefing has been concluded, but the case has not been argued or submitted to the Circuit panel for decision. The case has been in abeyance since March 2021, pending further rulemaking by DOE.

Additionally, in two separate petitions also filed in the Second Circuit, groups of petitioners that were essentially identical to those that filed the lawsuit challenging the September 2019 Withdrawal Rule challenged the December 2019 Final Determination. See Natural Resources Defense Council v. U.S. Department of Energy, No. 20-743; New York v. U.S. Department of Energy, No. 20-743. On April 2, 2020, those cases were put into abeyance pending the outcome of the September 2019 Withdrawal Rule petitions.

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. Id. at 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.

In accordance with E.O. 13990, on May 25, 2021, DOE published a request for information (“RFI”) initiating a re-evaluation of its prior determination that the Secretary was not required to implement the statutory backstop requirement for GSLs (“May 2021 RFI”). 86 FR 28001. DOE solicited information regarding the availability of lamps that would satisfy a minimum efficacy standard of 45 lm/W, as well other information that may be relevant to a possible implementation of the statutory backstop. Id.

DOE received comments in response to the May 2021 RFI from the interested parties listed in Table I.1.

The comments specific to the 45 lm/W backstop requirement and implementation of the backstop requirement are summarized and addressed in the following section. A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 7

In this NOPR, DOE proposes a determination that the 45 lm/W backstop requirement for GSLs at 42 U.S.C. 6295(i)(6)(A)(v) has been triggered because of DOE's failure to complete the first phase of rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv). The effect of this failure to complete certain rulemakings would be that 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))

As described in section I.A of this document, EPCA specifies several criteria that DOE must adhere to in its first rulemaking cycle for GSLs. ( See 42 U.S.C. 6295(i)(6)(A)(i)-(iv)) If DOE fails to complete a rulemaking in accordance with clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A) or if the final rule does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, clause (v) requires DOE to prohibit sales of lamps with an efficacy below 45 lm/W “effective beginning January 1, 2020.”

In the March 2016 NOPR proposing energy conservation standards for GSLs, DOE explicitly addressed the backstop provision at 42 U.S.C. 6295(i)(6)(A)(v). 81 FR 14528 (March 17, 2016). Specifically, DOE stated that due to the Appropriations Rider, DOE was unable to perform the analysis required in clause (i) of 42 U.S.C. 6295(i)(6)(A) and as a result, the backstop in 6295(i)(6)(A)(v) is automatically triggered. 81 FR 14528, 14540. DOE reiterated that it was not considering GSILs, including exclusions or exemptions, in the rulemaking due to the Appropriations Rider. 81 FR 14528, 14582. DOE further explained that under 42 U.S.C. 6295(i)(6)(A)(v), if it failed to (1) complete a rulemaking in accordance with clauses (i) through (iv), which included determining whether the exemptions for certain incandescent lamps should be maintained or discontinued, or (2) publish a final rule that would meet or exceed the energy savings associated with the statutory 45 lm/W requirement, then the backstop would be triggered beginning January 1, 2020. Id. Thus, in the March 2016 NOPR, DOE assumed that the backstop would be triggered beginning January 1, 2020. Id. Further, DOE stated that lamps that meet the proposed GSL definition would be subject to the 45 lm/W efficacy level and estimated an associated energy savings of approximately 3 quadrillion Btu (“quads”) for lamps sold in 2020-2049 and a carbon reduction of approximately 200 million metric tons by 2030. 81 FR 14528, 14534.

In the January 2017 Definition Final Rules, DOE did not interpret paragraph (6)(A) as requiring DOE to establish amended standards for GSLs. 82 FR 7276, 7283. DOE stated that clause (v) expressly contemplates the possibility that DOE would not finalize a rule that develops alternative standards for GSLs. Id. In these rules, DOE did not make any determination regarding standards for GSLs. 82 FR 7278, 7316. DOE acknowledged that the backstop would go into effect if DOE failed to complete the rulemaking as prescribed by EPCA by January 1, 2017, or the final rule did not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W. Id. While not explicitly stating its assumption that the backstop requirement would be triggered, DOE set a January 1, 2020 effective date for the definitions rule, which coincided with the effective date of the backstop requirement. DOE also noted its commitment to working with manufacturers to ensure a successful transition if the backstop standard went into effect. To that end, on January 18, 2017, DOE issued a “Statement Regarding Enforcement of 45 LPW General Service Lamp Standard” (“January 2017 Enforcement Statement”) stating that EPCA requires that, effective beginning January 1, 2020, DOE shall prohibit the sale of any GSL that does not meet a minimum efficacy standard of 45 lm/W. 8 In the enforcement statement, DOE advised that it could issue a policy that provides additional time allowing for the necessary flexibility for manufacturers to comply with the 45 lm/W standard. Id.

In the September 2019 Withdrawal Rule, DOE concluded that the backstop requirement had not been triggered. 84 FR 46661, 46664. DOE stated that it initiated the first GSL standards rulemaking process by publishing a notice of availability of a framework document in December 2013, satisfying the requirements in 42 U.S.C. 6295(i)(6)(A)(i) to initiate a rulemaking by January 1, 2014. 84 46661, 46663. DOE further stated its belief that Congress intended for the Secretary to make a predicate determination about GSILs, and that the obligation to issue a final rule prescribing standards by a date certain applies if, and only if, the Secretary makes a determination that standards in effect for GSILs need to be amended. 84 FR 46661, 46663-46664. Since DOE had not yet made the predicate determination on whether to amend standards for GSILs, DOE found the obligation to issue a final rule by a date certain did not yet exist and, as a result, the condition precedent to the potential imposition of the backstop requirement did not yet exist and no backstop requirement had yet been imposed. Id.

In the December 2019 Final Determination, DOE reiterated its interpretation that the statutory deadline for the Secretary to complete a rulemaking for GSILs in 42 U.S.C. 6295(i)(6)(A)(iii) does not establish an absolute obligation on the Secretary to publish a rule by a date certain. 84 FR 71626, 71635. Instead, DOE stated that this deadline applies only if the Secretary makes a determination that standards for GSILs should be amended. Id. at 71636. Otherwise, DOE again stated, it could result in a situation where a prohibition is automatically imposed for a category of lamps for which no new standards, much less prohibition, are necessary. Id. In the December 2019 Final Determination, since DOE made what it characterized as the predicate determination that standards for GSILs do not need to be amended, DOE found that the obligation to issue a final rule by a date certain did not exist and, as a result, the condition precedent to the potential imposition of the backstop requirement did not exist and no backstop requirement had been imposed. Id.

In the May 2021 RFI, DOE stated that if it were to determine that it did not fulfill the criteria in paragraphs (i)-(iv) of 42 U.S.C. 6295, the sales prohibition under the backstop requirement would affect any lamp type that is defined as a GSL. 86 FR 28001, 28003. Accordingly, DOE requested information about the lamp types discussed in the following sections, including whether a phased implementation would be appropriate for certain lamp types. Id. In addition to comments and data regarding the efficacy and availability of certain lamps, the Joint Commenters, CA IOUs, and CEC commented on the operation of the backstop, asserting that it has been triggered. (Joint Commenters, No. 19 at p. 13; CA IOUs, No. 22 at p. 2; CEC, No. 23 at pp. 2-4)

The Joint Commenters asserted that the backstop has been triggered because DOE failed to issue a new standard by January 1, 2017. (Joint Commenters, No. 19 at p. 13) The Joint Commenters cited the January 2017 Enforcement Statement in support of their assertion and stated that no subsequent action taken by DOE could change the fact that the 45 lm/W standard has been triggered. ( Id. ) The CA IOUs asserted that the backstop has been triggered as a result of DOE not issuing rulemakings by deadlines specified in EPCA. (CA IOUs, No. 22 at p. 2) CEC asserted that DOE failed to meet the requirements of 42 U.S.C. 6295(i)(6)(A)(i)-(iv). (CEC, No. 23 at p. 2) CEC stated because DOE was unable to consider incandescent lighting technologies when it initiated a rulemaking evaluating GSL standards on December 9, 2013, due to the Appropriations Rider, DOE did not evaluate whether the exemptions for certain incandescent technologies should be maintained or discontinued, as required by section 6295(i)(6)(A)(i)(II). (CEC, No. 23 at p. 3) CEC stated that the U.S. District Court for the Eastern District of California had found that DOE likely failed to meet the requirements of 6295(i)(6)(A)(i)-(iv). 9 Id. CEC further commented that because DOE failed to complete a rulemaking in accordance with subclauses (i) through (iv), DOE does not have discretion regarding implementation of the backstop. (CEC, No. 23 at p. 4) CEC noted that EPCA states that if the Secretary fails to complete a rulemaking in accordance with the statutory criteria, the Secretary “shall” prohibit GSLs that do not meet the minimum 45 lm/W standards and that the Supreme Court has found the term “shall” is “unmistakably” mandatory language. 10 Id.

Congress identified two circumstances that would trigger application of the backstop requirement: (1) If DOE “fails to complete a rulemaking in accordance with clauses (i) through (iv)” of section 6295(i)(6)(A); or (2) “if the final rule” promulgated under this rulemaking “does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lumens per watt.” 42 U.S.C. 6295(i)(6)(A)(v). DOE preliminarily determines that the backstop requirement has been triggered because both of the foregoing circumstances have occurred.

a. DOE failed to complete the first cycle of rulemaking in accordance with clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A) for at least two reasons. The first reason is that DOE failed to complete this first GSL rulemaking timely. The structure of section 6295(i)(6)(A) reflects an expectation by Congress that by January 1, 2017, the outcome of DOE's GSL rulemaking would have been known, and, if either amended standards or the backstop were to be applicable, those would be in place no later than January 1, 2020.

The position DOE advanced in the September 2019 Withdrawal Rule and the December 2019 Determination—namely, that the backstop provision is premised on the Secretary first making a determination that standards for GSILs should be amended and that the statute does not impose a deadline for the GSIL determination—fails to give meaning to all of the surrounding statutory text, as DOE is obligated to do. See 84 FR 46661, 46663-46664; 84 FR 71626, 71635; see also 42 U.S.C. 6295(i)(6)(A)(iii). In looking at the surrounding context of section 6295(i)(6)(A) and 6295(i)(6)(B), it is clear that Congress intended DOE's first GSL rulemaking to be completed by January 1, 2017—primarily due to Congress providing interested parties a gap of time between the conclusion of this rulemaking and the deadline for compliance, thus giving interested parties time to adjust to any changes.

In section 6295(i)(6)(A), Congress explicitly contemplated two possible outcomes: (1) A final rule amending standards for GSLs, or (2) imposition of the backstop of 45 lm/W. Under the first scenario, DOE would have been obligated to publish a final rule by January 1, 2017, with an effective date no earlier than three years after publication—thereby giving manufacturers a three-year lead time to prepare for the changed standards. See 42 U.S.C. 6295(i)(6)(A)(iii). Under the second scenario, the backstop would come into effect, but not until January 1, 2020—giving manufacturers the same three-year lead time to adjust to the forthcoming efficacy standard of 45 lm/W. See id. at 6295(i)(6)(A)(v).

Even if the statute contemplated a third possible scenario—a determination by DOE that standards for GSLs need not be amended under which the backstop was not triggered—it is clear from section 6295(i)(6)(A) that Congress expected this determination would be made no later than January 1, 2017.

This allowance for lead time is reflected in the preemption exception provision in section 6295(i)(6)(A)(vi), which gives California and Nevada the authority to adopt, with an effective date beginning January 1, 2018 or after, either:

This provision allows California and Nevada to implement either a final DOE rule amending standards for GSLs or the 45 lm/w backstop standard on January 1, 2018, two years earlier than the rest of the country. This provision thus assumes that California and Nevada would have to have known whether DOE had completed a final rule amending standards for GSLs by January 1, 2017, so that manufacturers subject to standards in those states would have a practicable one-year lead time to comply.

Lastly, Congress' mandate in 42 U.S.C. 6295(i)(6)(B) that DOE initiate the second cycle of rulemaking by January 1, 2020, coincides with a schedule in which standards are adopted (or the backstop is implicated) by January 1, 2017 with a minimum three-year lead time.

In addition to failing to complete the first cycle of rulemaking timely, the second reason why DOE's rulemaking was not “in accordance with clauses (i) through (iv)” of section 6295(i)(6)(A) is because DOE's rulemaking did not “consider[ ] a minimum standard of 45 lumens per watt for general service lamps.” 42 U.S.C. 6295(i)(6)(A)(ii)(II). DOE considered GSILs only in the scope of the December 2019 final determination analysis, with lamps having a maximum efficacy less than 45 lumens per watt. 84 FR 71626. While DOE did not analyze lamps other than GSILs in the scope of the December 2019 final determination analysis, DOE did look at the impact on GSIL shipments as a result of consumers choosing to purchase other lamps, such as CFLs and LED lamps, if standards for GSILs were amended as discussed in section VI.A of the December 2019 final determination. Therefore, DOE could not have considered a 45 lumens per watt standard level as part of that rulemaking determination because of the GSIL limited scope.

b. Although DOE's failure to “complete a rulemaking in accordance with clauses (i) through (iv)” is itself sufficient to trigger application of the backstop, DOE also did not determine whether its final rule (or rules) in this first cycle of rulemaking produced savings that are “greater than or equal to the savings from a minimum efficacy standard of 45 lm/W[.]” 42 U.S.C. 6295(i)(6)(A)(v). That is an independent basis for application of the backstop under section 6295(i)(6)(v). Congress provided that the backstop would be imposed “if the final rule does not produce energy savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W.” Id. In neither the September 2019 Withdrawal Rule nor the December 2019 Determination did DOE compare whether any energy savings resulting from either rule would produce energy savings that are greater than or equal to a minimum efficacy standard of 45 lm/W. 11

For the foregoing reasons, DOE preliminarily determines the backstop requirement in 42 U.S.C. 6295(i)(6)(A)(v) was triggered and should have been effective as of January 1, 2020.

Once triggered, the backstop requirement as specified in 42 U.S.C. 6295(i)(6)(A)(v) directs DOE to prohibit the sale of GSLs that do not meet a minimum requirement of 45 lm/W. DOE's current regulatory definition for GSL is consistent with the statutory definition for GSL, which includes GSILs, CFLs, general service LED lamps and OLED lamps, and any other lamps that the Secretary determines are used to satisfy lighting applications traditionally served by GSILs as defined in EPCA. 10 CFR 430.2. ( See also, 42 U.S.C. 6291(30)(BB)(i)) DOE's current regulatory definition of GSL does not include any of the 22 lighting applications or bulb shapes explicitly not included in the definition of GSIL, 12 or any general service fluorescent lamp or IRL. 10 CFR 430.2. ( See also, 42 U.S.C. 6291(30)(BB)(ii))

By comparison, the definitions of GSL and GSIL as amended by the January 2017 Definition Final Rules were broader than their statutory definitions. On August 19, 2021, DOE published a NOPR to amend the definitions of GSL and GSIL as previously set forth in the January 2017 Definition Final Rules (“August 2021 Definition NOPR”). 86 FR 46611. Specifically, DOE proposed to adopt the definitions of GSL and GSIL as previously adopted in the January 2017 Definition Final Rules by amending the definition of GSL to be a lamp that has an ANSI base; is 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 at 277 volts for integrated lamps, or is able to operate at any voltage for non-integrated lamps; has 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; is not a light fixture; is not an LED downlight retrofit kit; and is used in general lighting applications. 86 FR 46624-46625. Hence, DOE proposed that GSLs include, but not be limited to, GSILs, CFLs, general service LED lamps, and general service OLED lamps. Id. Further, DOE proposed to re-adopt the conclusion DOE made in the January 2017 Definition Final Rules that GSLs do not include:

In the August 2021 Definition NOPR, in re-adopting definitions DOE previously adopted in the January 2017 Final Definition Rules, DOE proposed to amend the definition of GSIL to be 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. 86 FR 46624. However, this definition does not apply to the following incandescent lamps—

In this document, DOE proposes an interpretation of EPCA by which DOE determines that the backstop provision in 42 U.S.C. 6295(i)(6)(A)(v) has been triggered and thus the sale of GSLs that do not meet the 45 lm/W requirement prescribed by statute is prohibited. DOE recognizes that, if the backstop were implemented, the sales prohibition on GSLs that do not meet a minimum efficacy standard of 45 lm/W would present different implementation challenges than most DOE standards, which are based on the date of manufacture. Specifying a date beyond which certain GSLs could no longer be sold could lead to stranded inventory. DOE recognizes that manufacturers, distributors, and retailers would need time to take steps to account for the supply chain to avoid stranded inventory. As explained above, Congress structured 42 U.S.C. 6295(i)(6)(A)(i)-(v) so as to provide manufacturers with a lead time (with a possible shorter lead time for California and Nevada) to adjust to different efficacy standards—either standards adopted by DOE through rulemaking or the imposition of the statutory backstop. In addition, Congress expressly required DOE to consider phased-in effective dates by considering “the impact . . . on manufacturers, retiring and repurposing existing equipment, stranded investments, labor contracts, workers, [ ] raw materials,” and “the time needed to work with retailers and lighting designers to revise sales and marketing strategies.” 42 U.S.C. 6295(i)(6)(A)(iv). Therefore, Congress did not intend for there to be an instantaneous imposition of a new 45 lm/W efficacy standard for GSLs. Such a possible outcome exists now only because of DOE's delay in correctly addressing the applicability of the backstop. DOE must balance Congress's intent to facilitate a smooth transition to different efficacy standards through the provision of lead time with the clear intent of Congress that these different efficacy standards were to be in place as of January 1, 2020. 42 U.S.C. 6295(i)(6)(A)(jjj), (v).

To best balance Congress's intent, DOE is proposing a 60-day effective date if the backstop is implemented under DOE's proposed determination as set forth in this notice. However, DOE understands the practicalities associated with the implementation of Congress' backstop that prohibits the sale of GSLs that do not meet a 45 lm/W efficacy standard, and DOE's understanding is informed, in part, by the comments received to the May 2021 RFI. In order to provide for a smooth transition, DOE intends to account for the practicalities of this transition to Congress's backstop efficacy standard through use of its enforcement discretion as further described below. DOE invites comments on these and further considerations relevant to informing DOE's enforcement discretion.

Were DOE to determine that it did not complete the first cycle of rulemaking in accordance with paragraphs (i) through (iv) of Section 6295, the sales prohibition under the backstop requirement would affect any lamp type that is defined as a GSL. In the May 2021 RFI, DOE requested comment on a number of issues related to potential implementation of the backstop requirement. 86 FR 28001, 28004. Specifically, DOE requested information on the availability of and market for lamps defined as GSLs and lamps excluded from the definition of GSL; and if a lamp type within the definition of GSL or a lamp type excluded from the definition of GSL does not currently have units with an efficacy of at least 45 lm/W, information on whether it is possible to create lamps in that category that perform at such a level and how long it would take for those products to be sold at retail locations. Id. DOE also requested comment and information regarding inventory cycles, steps manufacturers/retailers would need to take to avoid stranded inventory for lamps that do not have an efficacy of at least 45 lm/W, and how stranded inventory would be addressed, as well as the associated costs. Id.

The Joint Commenters stated that there are a full range of LED products that fall within both the statutory definition and the January 2017 Definition Final Rules. The Joint Commenters stated that these products have a wide range of light outputs (including multiple light levels such as 3-way bulbs), color temperatures ( e.g., warm, cool white, daylight), shapes ( e.g., all sizes of candle, flame-tip, globe, reflector), and base types ( e.g., different-sized screw bases, pin-bases), all from a wide variety of manufacturers; and that there are also dimming and non-dimming versions and dim-to-warm features which mimic incandescent dimming. (Joint Commenters, No. 19 at pp. 8-9) The Joint Commenters stated that the majority of lighting products sold by home improvement stores are LED products; discount stores and hardware stores also carry a wide variety of LED lamps, with online retailers providing an even wider range; and that stores with less lighting shelf space ( e.g., drug, grocery stores) have narrower offerings for both LED and incandescent products. (Joint Commenters, No. 19 at pp. 8-9) The Joint Commenters also stated that the world-wide supply chain of LED GSLs is successfully meeting the growing demand, including 60 percent of lamps sold in the U.S. today and that 27 countries in Europe, California, and Nevada implemented the 45 lm/W standard and were able to meet consumer demand with LED lamps without a problem, demonstrating that demand can also be met in the U.S. (Joint Commenters, No. 19 at p. 12) CEC stated that new LED lamp models with improved quality, energy efficiency, and wide ranges of lumens are constantly being introduced in the market and that retail prices of the lamps have also been declining. (CEC, No. 23 at p. 6)

The CA IOUs stated that they conducted a survey of 14 lighting online retailers and collected information on 75,000 LED lamps, which included a continuous range of power levels, light output both below 310 lumens and above 3,300 lumens, and many different base types. The CA IOUs stated they also identified small, high output lamps which they asserted are the most difficult to convert to LED technology due to miniaturization of electronics and heat management issues. The CA IOUs stated that this indicated that LED technology has matured, and lighting manufacturers can provide LED versions of all GSLs covered under DOE's January 2017 Definition Final Rules. (CA IOUs, No. 22 at p. 4) CEC stated that except for some truly specialty lamps, CEC has not seen major supply issues for lamps compliant with the 45 lm/W standard in California. (CEC, No. 23 at p. 6)

NBI commented that states have been requiring GSLs with an efficacy exceeding 45 lm/W in new residential and multifamily buildings for more than a decade. NBI stated that a high percentage of the country's construction activity is already covered by these lamp efficacy requirements, and that the residential chapter of the 2021 International Energy Conservation Code (IECC) requires all lamps in permanent fixtures to have an efficacy of no less than 65 lm/W and past IECC codes required at least a 45 lm/W requirement. (NBI, No. 15 at pp. 1-2) VEIC stated that California, Nevada, Vermont, Washington, Colorado, Massachusetts, and the District of Columbia have passed lighting standards in the absence of a Federal standard and have not had issues with product availability. VEIC also stated that the absence of a Federal standard supporting the 45 lm/W requirement—requiring states to enact their own legislation and enforcement—is creating confusion in the lighting market. (VEIC No. 29 at p. 2)

NEMA stated that, regarding what it characterized as compliant lamps that are not defined as GSLs, incandescent/halogen lamps have been declining since 2007 except for rough service and vibration service lamps. Regarding GSLs as defined under the existing GSL definition, NEMA stated that, apart from a brief, forecasted spike, incandescent/halogen lamps sales have been declining since 2007 and CFLs have been declining since 2015 with only LED lamps increasing in sales. (NEMA, No. 13 at p. 2) NEMA stated that the decorative CFLs and reflector CFL sales have been declining since 2015 and these lamps are nearly gone from the market and only LED lamps in this category are increasing in sales. (NEMA, No. 13 at pp. 2-3) NEMA further stated that any incandescent/halogen lamps still being used in the commercial sector do not have acceptable LED substitutes. (NEMA, No. 13 at p. 5)

Citing the NEMA Lamp Indices, CEC stated that for the second quarter of 2020, incandescent/halogen lamps accounted for 23.8 percent of A shape lamp shipments. (CEC, No. 23 at p. 7) NEMA stated that, per NEMA Lamp Indices of A shape lamps, almost 75 percent are LED lamps, and NEMA estimated the proportion to grow and last due to the longer LED lamp lifetimes. (NEMA, No. 13 at p. 3) Citing a 2020 Northwest study, VEIC stated that more than half of the general purpose lamp and reflector lamp market was LED lamps. (VEIC, No. 29 at p. 1) Citing the CREED Lighttracker (based on sales data) for 2019, the Joint Commenters stated that LED lamps constitute 60 percent of lighting sales. (Joint Commenters, No. 19 at p. 3; MEIC, No. 7 at p. 1; CFA, NCLC, No. 24 at p. 1) Per this data, the Joint Commenters stated that incandescent/halogen lamps constitute 38 percent of sales (CSM stated 40 percent). (Joint Commenters, No. 19 at p. 3; CSM, No. 12 at p. 1) The Joint Commenters estimated about a billion light sockets in the U.S. still employ incandescent/halogen lamps. The Joint Commenters further stated that, per the CREED Lighttracker, of A shape lamps, candelabra base lamps, globe shape lamps, and reflector shape lamps, respectively, 58, 56, 50 and 84 percent were LED lamps in 2019. Citing the 2015 Lighting Market Characterization report, the Joint Commenters stated that about 3.4 billion light sockets in the U.S. have A shapes and another 2 billion have a lamp type included in the proposed expanded definition. (Joint Commenters, No. 19 at p. 3)

The CA IOUs stated they relied on the CREED Lighttracker data for four popular lamp types ( i.e., A shape, candelabra base, globe shape, and reflector) to extrapolate 2020 U.S. lighting sales (excluding California). Based on this assessment, the CA IOUs estimated 334 million U.S. incandescent/halogen lamp sales in 2020 (a decrease of 46 percent in two years). The CA IOUs also estimated that in 2020 one-third of A shape lamps were incandescent/halogen; and of incandescent/halogen sales, 78 percent were A shape lamps and 19 percent were candelabra base lamps and globe shape lamps. The CA IOUs determined that few reflector lamps were incandescent/halogen and that less than 1 percent of new lamp sales were CFLs in 2020. The CA IOUs stated that this analysis showed that inefficient lamps still claim a significant market share for A shape, candelabra base, and globe shape GSLs and, given that LED lamps save about 80 percent or more electricity, there are significant energy saving to be gained from a DOE GSL standard. (CA IOUs, No. 22 at p. 4)

The Joint Commenters cited a 2020 study by the New York State Energy Research and Development Authority that used retailer inventory as a proxy for market share. The Joint Commenters stated that this study estimated that in New York the overall market share of LEDs was 73 percent, with LED lamps comprising 77, 72, 61, and 78 percent respectively of A shape lamps, candelabra base lamps, globe shape lamps, and reflector lamps. The Joint Commenters stated that the report found an increase in LEDs from the previous year and also that one in four lamps were still incandescent lamps. (Joint Commenters, No. 19 at pp. 4-5)

The Joint Commenters stated that big and small manufacturers and retailers continue to promote incandescent lamps because their short lifespan triggers sales sooner than for an LED lamp. (Joint Commenters, No. 19 at p. 5) The CA IOUs stated that the GSL transformation follows an S-shaped curve which means the rate of change will slow and then stop without the DOE standard. The CA IOUs stated that market forces alone will probably allow for inefficient GSLs to continue to have some share of the lighting market. (CA IOUs, No. 22 at p. 5) Connecticut DEEP stated that although LEDs have approximately 60 percent of the market share, savings will continue to be lost without national standards. (Connecticut DEEP, No. 6 at p. 2)

NEMA stated that GSLs that meet a 45 lm/W standard are essentially all LED lamps or CFLs. NEMA stated that incandescent/halogen lamps with medium screw base, lumens between 310 to 2600 lumens, and that operate between 110-130 volts (V) cannot meet 45 lm/W. NEMA stated that due to the successful development and sales of LED technology, there is no research and development being done on improving the efficacy of incandescent/halogen lamps. (NEMA, No. 13 at p. 2)

NEMA stated that lamps excluded from the GSL definition ( i.e., reflector lamps, rough service lamps, shatter-resistant lamps, 3-way lamps, vibration service lamps, larger T lamps greater than 1″ in diameter, and most decorative lamp shapes with medium screw bases) that meet 45 lm/W are also essentially all LED lamps. (NEMA, No. 13 at p. 2) NEMA stated while there has been significant conversion to LED for many excluded lamps including reflector, decorative, and 3-way lamps, the excluded lamp category is small (less than half the size of GSLs). (NEMA, No. 13 at p. 3)

NEMA stated that black light lamps and other ultraviolet (“UV”) lamps, bug lamps, and colored lamps are not tested for efficacy and are not GSLs. NEMA stated that infrared lamps, plant light lamps, and showcase lamps (T8 and smaller) are niche products not appropriate for general lighting applications. NEMA stated that G40 lamps and silver bowl lamps are used in few applications and are exempted because their size or light distributions make them difficult to be used anywhere else. With regards to marine lamps, marine signal service lamps, mine service lamps, R20 short lamps, sign service lamps, and traffic signal service lamps NEMA stated that LED versions of these lamps may not meet required military, transportation, or other specifications. (NEMA, No. 13 at p. 4)

NEMA and Signify stated the biggest limitation of LED technology is its use in high temperature environments ( i.e., within fixtures and devices) due to thermal management issues. NEMA commented that while some appliance lamps can have LED replacements, those operated in high temperatures—such as ovens—cannot. (NEMA, No. 13 at p. 3; Signify, No. 18 at p. 3) NEMA stated that appliances with LED light sources are already built in and designed to be protected from the heat. (NEMA, No. 13 at p. 3) NEMA stated that specialty lamps have no acceptable LED replacement because: (1) The LED version is not economically justified due to low sales volumes; (2) the LED version cannot be made in the small form factor; or (3) the LED version is unable to match the lumen output. (NEMA, No. 13 at p. 3) NEMA stated that an LED replacement for a typical pin base halogen (small form factor) that has 600 to 1200 lumens is unable to provide that lumen level in the same small form factor. (NEMA, No. 13 at p. 4) NEMA stated that LED lamps with a small diameter or with shapes such as MR16 and MR11 will continue to have thermal and light output limitations while small quartz halogen lamps can produce significant amount of light within a small form factor and operate at high temperatures. (NEMA, No. 13 at p. 5)

Signify stated that LED replacements for some T4/GY6.35 halogen capsule lamps can only be made with 600 lumens, and LED replacements for T3/R7s linear halogen lamps can match the required lumen outputs but only in larger form factors, which may lead to problems fitting in fixtures or poor optical performance. (Signify, No. 18 at p. 3) Signify stated that the following lamp types cannot meet 45 lm/W and/or are difficult to make with LED technology: Heat (infrared) lamps, blacklight lamps (and any UV lamps), appliance lamps, bug lamps, colored lamps, specialty MR lamps for entertainment, 12 V landscape lighting applications, plant light lamps, marine lamps, marine signal service lamps, mine service lamps, R20 short lamps, sign service lamps, traffic signal replacement lamps, T4 120V halogen capsule lamps with light output higher than 600 lumens, and T3/R7s 120V linear halogen lamps. (Signify, No. 18 at p. 2)

With regard to potential implementation of the backstop, NEMA commented that consideration of timing should not be limited to retail shelf-to-consumer-sale range events as purchasing and business decisions, supply chain, and manufacturing impacts also need to be considered. (NEMA, No. 13 at p. 5) NEMA stated the total time between the retailer's initial factory order and when a consumer can purchase product can be up to 6 months or longer and is dependent, in part, on order sizes and retailer distribution schedules. (NEMA, No. 13 at pp. 5-6) NEMA commented that upstream timing includes an average of three months from the start of the process of procuring raw materials until the release of component shipment to the factory, although the time will vary depending on the source of the materials. (NEMA, No. 13 at p. 6) NEMA stated that lower to medium volume products and larger full container orders can have one to two week lead time and 60-70 day lead times, respectively. NEMA further stated that goods will remain in a retailer's distribution center for two to four weeks until they are shipped to individual store locations. (NEMA, No. 13 at pp. 5-6) Signify stated that LED lamp design typically takes six months, followed by an additional six months to fill the supply chain pipeline. For any new LED lamp that needs to be developed, Signify stated that there may be a shortage of products available to consumers if DOE fails to provide adequate time for manufacturers to prepare for the transition. (Signify, No. 18 at p. 4)

NEMA stated that other factors, such as retailer-specific contracts and “safety stock,” may also affect how retailers stock lamps. (NEMA, No. 13 at p. 6) NEMA further commented that review of product assortments by regional and national retail chains varies by retailer and that due to the complicated logistics and labor involved in resetting a physical product assortment across regional and national chains, this process can take 18 to 24 months to finalize and implement, to include normal sell through of product on the shelf. (NEMA, No. 13 at p. 6) NEMA suggested that DOE interview medium and small lighting retailers, many of whom are small businesses, and consider the negative financial impact mid-sized and smaller retailers may face and ensure the final rule provides sufficient time to avoid stranded assets in retail stores of all sizes. (NEMA, No. 13 at p. 6)

ALA stated lighting retail stores and distributors are facing challenges stemming from the COVID-19 pandemic including fluctuating prices as a result of uncertain freight costs as well as supply chain disruptions, as well as from tariffs, emerging government regulations, and growing competition from multiple channels of distribution. (ALA, No. 20, pp. 1-2) ALA further commented that showrooms do not typically have large stockpiles of any one type of lamp on hand, instead having a voluminous variety of lamps in inventory. (ALA, No. 20, pp. 1-2) ALA stated manufacturers have a certain lead time when it comes to the sourcing and production of products and that DOE must make every effort to put in place safeguards that will protect against any disruptions to the supply chain while production of compliant products increases. (ALA, No. 20, p. 2) ALA also commented that sales of newer, more efficient products are up and sales of affected products are down, and that as this trend continues, a manufacturers' sales ban would give showrooms the flexibility to sell off existing inventory. Id.

NEMA stated that in its experience, most retailers have on average three months of inventory between their store and distribution centers to prevent having empty shelf space. NEMA stated that lower to medium demand products and specialty seasonal demand products ( e.g., colored lights) may sit on a store shelf between 30 and 90 days, while retailers prefer to maintain at least two weeks of inventory for high demand products. (NEMA, No. 13 at pp. 6-7) NEMA also commented that identifying and sourcing new products for retail can take 6-12 months, including identifying and qualifying the source, setting up the new vendor, product testing time, price negotiation, purchase orders, transit from the source, and initiating new data setup in store registers. (NEMA, No. 13 at p. 7) NEMA further commented that lamp sales are seasonal and affected by scheduled events, which requires manufacturers to prepare several months earlier to have adequate inventory to meet demand. Id.

NEMA stated that each manufacturer or retailer would individually decide what to do with stranded inventory, adding that national laws make it difficult to find alternative markets to sell newly restricted products and that the costs associated with disposal will be the cost of each individual lamp, associated labor, and land fill costs. (NEMA, No. 13 at pp. 7, 8) NEMA further stated that any lamp sold in another market will most likely be a high sales volume lamp type and would be sold at break-even or at a loss to exporters. (NEMA, No. 13 at pp. 7-8) Signify stated, as a manufacturer, that any stranded inventory would most likely need to be scrapped. (Signify, No. 18, p. 5) ALA stated that lamp products can often remain in inventory for a considerable amount of time and that nationally the impact of a retail sales ban would create a glut of stranded inventory, piling up at individual showrooms and eventually landfills. (ALA, No. 20, p. 2) ALA further commented that there are no viable options available to retailers under a retail sales ban to unload non-compliant GSLs, which means that lighting retailers will have millions of dollars of stranded product. (ALA, No. 20, p. 2) ALA further stated that retailers will be forced to increase costs on all other products in order to recoup the losses suffered as a result of the retail sales ban. (ALA, No. 20, p. 2)

NEMA commented that it is imperative that DOE provide enough time for manufacturers and retailers to plan an orderly exit from regulated product lines and that failure to provide adequate transition time would cause each manufacturer and each retailer to incur significant unexpected costs to dispose of stranded inventory, and waste material, manufacturing, and transportation resources while providing very little additional energy savings or CO 2 emissions reductions. (NEMA, No. 13 at p. 7) NEMA asserted that the life of incandescent and halogen lamps is very short, and that the lost energy-savings risk of providing adequate time to manufacturers and retailers is very small, while the potential economic damage risk to both large companies and small family-owned retailers alike is large. (NEMA, No. 13 at pp. 7-8)

NEMA recommended that to minimize disruption and provide certainty throughout the supply chain, DOE rely on a two-step approach for manufacturers and retailers to implement the 45 lm/W minimum requirement. (NEMA, No. 13 at p. 7) Specifically, NEMA suggested an approach under which the requirement would apply to GSLs as manufactured beginning one-year after a final rule and to the retail sale of GSLs beginning one year following as-manufactured compliance date. (NEMA, No. 13 at p. 7) NEMA stated that the 2-step approach would be significantly less disruptive to manufacturers and retailers and would be far easier to manage than a blanket 45 lm/W sales ban. (NEMA, No. 13 at p. 7) ALA agreed with NEMA's comments in general and its two-step implementation approach, stating that a phase-in period of at least two years from the publication of a final rule would go a long way to address concerns. (ALA, No. 20, pp. 2-3) Signify stated it can support a minimum efficacy requirement of 45 lm/W for GSLs provided that it has a minimum of 12 months to implement it from the date of publication of any final rule and that it is implemented initially via a manufacturing date/importation ban, followed if necessary with a subsequent retail sales ban. (Signify, No. 18, pp. 2, 4) Signify further commented that a sales ban is difficult to implement and requires end-to-end management of stock and components and can result in high financial liabilities for manufacturers and retailers due to stranded inventory that cannot be sold and must be scrapped and sent to landfills. (Signify, No. 18, p. 4) NEMA and Signify asserted that EISA allows a phase-in approach of additional regulations and that the suggested two-phase approach is sufficient to provide certainty in the marketplace, allow for advanced planning to avoid stranded inventory and empty shelf space, and result in reduced disruption throughout the supply chain. (NEMA, No. 13 at p. 7; Signify, No. 18 at pp. 4-5) China stated that a transition period of at least three years should be given for GSIL provisions and any new categories of products for the minimum efficacy of 45 lm/W. (China, No. 14, p. 3) UGC stated that prohibiting sales of inefficient bulbs now will disproportionately impact small businesses and could lead to a supply shortage of affordable bulbs in low-income communities. (UGC, No. 17 at p. 1)

The CA IOUs, CEC, and Joint Commenters stated that a wide range of compliant GSLs, as defined under the January 2017 Definition Final Rules, are readily available. (CA IOUs, No. 22 at p. 4; CEC, No. 23 at p. 7; Joint Commenters, No. 19 at pp. 8-9) The Joint Commenters stated that the world-wide supply chain for LED GSLs is more than capable of meeting additional LED demand. (Joint Commenters, No. 19 at p. 12) The Joint Commenters asserted that the lighting industry and retailers have known since enactment of the relevant lamp provisions in 2007 that a standard of at least 45 lumens per watt was due to take effect on January 1, 2020. (Joint Commenters, No. 19 at p. 12) The Joint Commenters further stated that equivalent standards have already been implemented in two states (California and Nevada) and across Europe, without disruption, demonstrating that the international supply chain can meet increased U.S. demand for LEDs. (Joint Commenters, No. 19 at p. 2) The CA IOUs stated that CEC staff have reported no major problems regarding the availability of GSLs in California 18 months following implementation by California of a 45 lm/W requirement. (CA IOUs, No. 22, p. 4)

The Joint Commenters stated that the backstop has already been triggered and the standard is non-discretionary and must be implemented as soon as practical. (Joint Commenters, No. 19, p. 7) To accommodate retailers with remaining non-compliant inventory while also avoiding further undue delay, the Joint Commenters recommended that DOE immediately announce that the backstop has been triggered and that sellers must comply with respect to the highest sales volume lamps within 60 days and that DOE allow 120 days for retailers to sell out slow-selling lamp types. (Joint Commenters, No. 19 at p. 2) The Joint Commenters stated that the sales prohibition deters manufacturers and retailers from importing and stockpiling excess inefficient products, an issue of greater concern in the light bulb context given their much lower unit price than the other products DOE regulates. (Joint Commenters, No. 19, p. 13) The Joint Commenters stated that a date of sale prohibition simplifies any effort to monitor compliance, as all that is needed is to check in a store or website to see if non-compliant lamps are still being offered for sale after the compliance date. (Joint Commenters, No. 19, p. 13) The CA IOUs urged DOE to maintain the “Date of Sale” prohibition with as short a period as possible before enforcement to allow retailers to clear inventories of non-compliant GSLs, and that DOE use its enforcement discretion based on information provided in response to the May 2021 RFI and other information to avoid needing to initiate enforcement actions against large numbers of retailers. (CA IOUs, No. 22 at p. 3) CEC stated that because the backstop has been triggered and DOE has a mandatory duty to begin enforcing it, DOE must begin enforcing it immediately. (CEC, No. 23, p. 4) CSM, UGC, and CEO encouraged DOE to implement new standards as soon as practical to allow the minimum amount of time needed for retailers to sell existing inventory. (CSM, No. 12 at p. 1; UGC, No. 16 at p. 1) CEO further stated that prompt implementation of standards will ensure that all customers benefit from up-to-date energy saving technology. (CEO, No. 30 at p. 1)

As discussed, if DOE fails to complete a rulemaking in accordance with clauses (i) through (iv) of Section 6295(i)(6)(A) or if the final rule does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, clause (v) provides that DOE “shall prohibit” sales of any GSL below the 45 lm/W backstop standard “effective beginning January 1, 2020.” As DOE explained in the January 2017 Definition Final Rules, if it is determined that the backstop is triggered, DOE would not have discretion regarding the effective date of the backstop standard. 84 FR 7276, 7283. The language of the statute is clear that Congress intended that the backstop, if triggered, would be effective as of January 1, 2020. DOE notes that clause (v) does not limit the sales prohibition to retail sales.

DOE recognizes the unique circumstances created by the delay in correctly addressing the applicability of the backstop. Were DOE to issue a final determination that the backstop has been triggered, as DOE proposes, DOE proposes to use its enforcement discretion to provide the necessary flexibility to avoid undue market disruption. For example, as part of this discretionary enforcement approach, and as suggested by many of the commenters, DOE would consider a staggered implementation that weighs factors such as the point of manufacture, 13 the point of sale, 14 and the anticipated inventory of different lamp categories. This flexible enforcement approach takes into account the disruptive supply chain effects of stranded inventory and the significant consumer and environmental benefits of full compliance, DOE believes that such an approach would—given the current circumstances—best balance Congress's intent to facilitate a smooth transition with Congress's intent that the different efficacy standards were to be in place as of January 1, 2020. DOE welcomes input on these and additional considerations for enforcement.

In response to the May 2021 RFI, DOE received several comments regarding the potential impacts of the 45 lm/W backstop. CFA and NCLC commented that consumers are already benefiting from changing to LED technology, but greater savings are achievable with the backstop requirement. CFA and NCLC stated there are broader impacts beyond consumer electricity bills, such as reduced costs for goods and services that result from commercial and industrial sectors having reduced lighting cost. (CFA and NCLC, No. 24 at pp. 1-2) CEC stated that further delay in implementing standards will cost consumers millions and cause unnecessary emission of pollutants. (CEC, No. 23 at p. 7) NASEO commented that states rely on cost-effective federal appliance and equipment energy efficiency standards for products to help them achieve energy affordability, energy system reliability and resilience, and environmental protection. (NASEO, No. 10 at p. 1) UGC stated that practically designed and implemented efficiency standards can benefit consumers and retailers while reducing emissions. (UGC, No. 18 at p. 1)

Commenters presented a range of potential consumer savings resulting from implementation of the backstop: UCE, CEO, MEIC, and SC & EJ stated that each month of delay in implementing standards that should have been implemented in 2020 costs consumers roughly $80 million (UCE, No. 9 at p. 1; CEO, No. 30 at p. 1; MEIC, No. 7 at p. 1; SC & EJ, No. 26 at p. 1); Joint Commenters, WDOC, and Connecticut DEEP, citing a November 2020 ASAP study, stated that each additional month of delay in implementing the standards will cost consumers $300 million over the lifetimes of the incandescent bulbs sold in that month (Joint Commenters, No. 19 at p. 6; WDOC, No. 17 at pp. 1-2; Connecticut DEEP, No. 6 at p. 1); and OER stated that each month of delay costs consumers $3 billion in lost utility bill savings. (OER, No. 25 at p. 1) CFA and NCLC stated that since the beginning of the new administration, consumers will have spent $2.8 billion on inefficient lighting and generated 4.8 million tons of carbon. (CFA, NCLC, No. 24 at p. 1).

OER, CFA, NCLC, VEIC, UCE, NASEO, MEIC, the Joint Commenters, and Connecticut DEEP stated that changing one bulb from incandescent to an LED saves a consumer $40 to $90 over ten years. OER, CFA, NCLC, VEIC, UGC, MEIC, Joint Commenters, and Connecticut DEEP further stated that the savings from this change can result in approximately $3,000 in net savings over ten years for a typical household. (OER, No. 25 at p. 1; CFA, NCLC, No. 24 at p. 1; VEIC, No. 29 at p. 2; UGC, No. 16 at p. 1; UCE, No. 9 at p. 1; NASEO, No. 10 at p. 1; MEIC, No. 7 at p. 1; Joint Commenters, No. 19 at pp. 7-8; Connecticut DEEP, No. 6 at pp. 1-2) CEC stated that any increased incremental cost from implemented standards would be fully offset by energy savings. (CEC, No. 23 at pp. 7-8)

NASEO stated that forgone consumer savings particularly harm low- and moderate-income households, and updated GSL standard implementation will ensure that all consumers benefit from cost- and energy-saving lighting. (NASEO, No. 10 at p. 1) The Joint Commenters, UGC, Connecticut DEEP, CFA, NCLC, and SWEEP stated that the cost of delayed implementation of standards disproportionately affects low-income consumers. Citing a Lawrence Berkeley National Laboratories report on EISA 2007, the CA IOUs stated that an estimated 27 quadrillion British thermal units (Btus) and a consumer net present value of $120 billion (at a seven percent discount rate) would be saved nationally over the next 30 years as a result of the 45 lm/W standard, if applied to the January 2017 Definition Final Rules. (CA IOUs, No. 22 at p. 3) CEC estimated that enforcement of the backstop as of January 1, 2020 would have resulted in 9.5 billion kWh of energy to be saved by 2025, and that an effective date of July 1, 2021, would still result in substantial savings. (CEC, No. 23 at pp. 3,4, 6-7)

NW Power and Conservation Council estimated that if all residential and commercial replacement GSLs in the Northwest (excluding eastern Montana) complied with the backstop, the Pacific Northwest would save approximately 160 average megawatts or 1400 gigawatt hours. (NW Power and Conservation Council, No. 27 at p. 2) CA IOUs estimated national savings from a 45 lm/W standard for the January 2017 Definition Final Rules. Using this model and an effective date of July 1, 2022, CA IOUs estimate 0.83 quads of energy with a net present value of about $28 billion and 81 million tons of CO 2 over 30 years. CA IOUs further stated that a one-year delay will decrease the cumulative savings by 12 percent. (CA IOUs, No. 22 at p. 5) Citing a November 2020 ASAP study, NASEO stated that updated GSL standards could avoid an annual 2.7 to 6.2 million metric tons of CO2 in 2030, with concomitant utility bill savings of $2.6 billion in 2035. (NASEO, No. 10 at p. 1)

NEMA stated that the CO 2 emissions reduction from 2007 to 2020 for GSL A-line and non-regulated lamps ( e.g., lamps currently excluded from the GSL definitions) is 89 percent and 82 percent, respectively. NEMA stated that the reduction is due to conversion to LED technology, and given the current rate of this conversion, the maximum CO 2 emissions reductions by 2025 without regulation for GSL A-line and non-regulated lamps will be 92 percent and 88 percent, respectively. NEMA stated that the industry estimates that if the entire category of A-line lamps switches to LED or CFL there would be an approximate 96 percent reduction in CO 2 emissions since 2007. NEMA stated that most of the energy savings and CO 2 emission reduction has already been achieved by consumers voluntarily replacing lamps with LED lamps. (NEMA, No. 13 at p. 3)

Citing a November 2020 ASAP study, the Joint Commenters and OER stated that each additional month of delay in implementing the standards will result in 800,000 tons of CO 2 emissions over the lifetimes of the incandescent bulbs sold in that month. UGC, CFA, NCLC, VEIC, EA and Connecticut DEEP, and SWEEP reiterated the same estimate of CO 2 emissions in their comments. (Joint Commenters, No. 19 at p. 6; OER, No. 25 at p. 1; UGC, No. 16 at p. 1; CFA, NCLC, No. 24 at p. 1; VEIC, No. 29 at p. 2; EA, No. 28 at p. 1; Connecticut DEEP, No. 6 at p. 1, SWEEP, No. 11 at p. 1) CEO, MEIC, and SC & EJ estimated that continuing to delay the standard will result in 250,000 tons of CO 2 emissions per month. (CEO, No. 30 at p. 1; MEIC, No. 7 at p. 1; SC & EJ, No. 26 at p. 1) OER stated that each month of delay implementing standards will result in 300,000 tons of CO 2 emissions. (OER, No. 25 at p. 1) The Joint Commenters stated that an additional year of delay will result in 9.5 million metric tons of CO 2 but if standards are implemented soon they can reduce CO 2 emissions by 50 million metric tons by 2030. (Joint Commenters, No. 19 at pp. 6-7)

DOE recognizes the potential for consumer and environmental benefits from a prohibition on the sale of GSLs with an efficacy of less than 45 lm/W. DOE reiterates that 42 U.S.C. 6295(i)(6)(A)(v), if triggered, requires DOE to prohibit sales of GSLs that do not meet the minimum efficacy of 45 lm/W. This backstop requirement is statutorily prescribed by Congress and no further analysis is required for its implementation.

DOE preliminarily determines that the statutory 45 lm/W backstop requirement has been triggered and therefore is proposing to place the backstop requirement for GSLs in the Code of Federal Regulations.

Were DOE to finalize the proposed rule and affirmatively determine that the backstop has been triggered, DOE would codify the statutory requirement in the Code of Federal Regulations.

This proposed rule is an economically significant regulatory action under Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review by the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB). Pursuant to section 6(a)(3)(C) of the Order, DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the regulatory action, together with, to the extent feasible, a quantification of those costs. This assessment can be found in the technical report that accompanies this rulemaking. 15 The assessment estimates that all lamp demand for new construction and replacements is assumed to be fulfilled by lamps with an efficacy of at least 45 lm/W, yielding a substantial reduction in energy consumption and an associated savings in energy costs relative to the base case. It is estimated that national full fuel cycle energy savings of 5.7 quads from the implementation of a 45 lm/W backstop over the 30-year analysis period. These energy savings translate to annualized net benefits of $3.7 billion, which includes the social value of emissions reductions (net benefits discounted at 3 percent). DOE plans to update our methodology to reflect the Environmental Protection Agency's recent updates to benefit-per-ton values in a future impact analysis if DOE issues a final rule and generally for forthcoming rulemakings, but we do not have time to fully vet the new methods for this impact analysis.

While this assessment represents DOE's best effort to analyze the effects of this rule, there are areas where more information would be helpful to DOE as it considers potentially refining the analysis. They are: (1) Whether DOE should consider a rebound effect (such as 10%) associated with the purchase of more efficient products; (2) whether there are consumer welfare losses associated with those consumers who prefer incandescent or halogen bulbs to LED bulbs even after taking into account steep price decline in LED bulbs and the energy savings that would accrue to them; and (3) how to disaggregate the effects of the backstop provision and the definitional provision separately within the framework presented in the proposed rules.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) 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. 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 ( energy.gov/gc/office-general-counsel ).

DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. DOE is proposing to revise the Code of Federal Regulations to incorporate and implement the backstop requirement for general service lamps that Congress prescribed in EPCA. Because DOE is not imposing additional costs beyond those required by statute, DOE certifies that the proposed rule, if adopted, would have no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared an IRFA for this proposed rule. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

If made final, this proposed rule would impose no new information or record keeping requirements. Accordingly, Office of Management and Budget clearance is not required under the Paperwork Reduction Act. 44 U.S.C. 3501 et seq.

Pursuant to the National Environmental Policy Act (“NEPA”) of 1969, DOE has determined that the proposed rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. ( See 10 CFR part 1021, app. B, B5.1(b); 10 CFR 1021.410(b) and app. B, B(1)-(5).) The proposed rule fits within this category of actions because it is a rulemaking that establishes a standard for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this proposed rule. DOE's CX determination for this proposed rule is available at energy.gov/nepa/categorical-exclusioncx-determinations-cx.

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 the review required by section 3(a), 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 (other than to the extent that such regulations incorporate requirements specifically set forth in law). 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 energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

If made final, this proposed rule would codify the sales prohibition of GSLs with an efficacy of less than 45 lm/W prescribed in 42 U.S.C. 6295(i)(6)(A)(v). As the proposed rule would incorporate requirements specifically set forth in law, an assessment under UMRA is not required and has not been conducted.

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 rule 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, “Governmental 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 action 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 proposed rule is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

DOE will accept comments, data, and information regarding this proposed rule 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 December 3, 2021, by Kelly Speakes-Backman, Principal Deputy 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:

and

The revisions and addition read as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class E airspace for Peachtree City, GA to support IFR operations in the area.

Interested persons are invited to comment on this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (Docket No. FAA-2021-1057 and Airspace Docket No. 21-ASO-38) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for the address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1057; Airspace Docket No. 21-ASO-38.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays, at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface at Atlanta Regional Airport Falcon Field, Peachtree City, GA (formerly Peachtree City, Falcon Field Airport) by updating the airports name and geographical coordinates of the airport to coincide with the FAA's database, increasing the radius of the airport to 8.7 miles (formerly 6.5 miles), and removing excessive verbiage from the legal description of the airport.

Class E airspace designations are published in Paragraphs 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures”, prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessening the dependency on ground based navigation.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-1100; Airspace Docket No. 19-AAL-65) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1100; Airspace Docket No. 19-AAL-65”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub. L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite based navigation Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum En route Altitude (MEA) or Global Navigation Satellite System Minimum En route Altitude (GNSS MEA); (b) the replacement of the colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA proposes to amend RNAV route T-235 to provide an alternate waypoints (WPs), the ZISDU WP for the Atqasuk, AK (ATK) NDB, and the JATIL WP for the Nuiqsut, AK, (UQS) NDB, in anticipation of the future decommissioning of the two NDBs. Additionally, the FAA proposes to extend the airway west to a newly established FILEV WP in the vicinity of Wainwright, AK. This extension would provide an alternate route for Colored airway G-17, supporting the future decommissioning of the Wainwright Village, AK, (UKK) NDB. Furthermore, the Put River, AK (PVQ) NDB is expected to be decommissioned. This proposal would provide an alternate in that area for Colored airway G-16 by extending the route to the east from the JATIL WP to the Deadhorse, AK, (SCC) VHF omnidirectional range with distance measuring equipment (VOR/DME).

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV route T-235 in the vicinity of Atqasuk, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.

T-235: The FAA proposes to amend T-235 by extending the route from the FILEV, AK, WP to the ZISDU, AK, WP. From the ZISDU, AK, WP, the route would provide guidance to the Nuiqsut Airport (PAQT), AK via the JATIL, AK, WP and the ZADRO, AK, WP. Finally, the route would extend east from the ZADRO, AK, WP to the Deadhorse, AK, (SCC) VOR/DME.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV listed in this document would be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the VOR Federal airway route structure in the eastern United States to maintain the efficient flow of air traffic.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-1030; Airspace Docket No. 21-ASW-10) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1030; Airspace Docket No. 21-ASW-10.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/. You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021 and effective September 15, 2021. FAA Order 7400.11F is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 to amend VOR Federal airways V-47, V-54, V-69, V-94, V-140, V-278, V-305, and remove V-397, in support of the FAA's VOR MON program. The proposed route changes are described below.

V-47: V-47 currently consists of two separate parts: From Pine Bluff, AR, to Pocket City, IN; and From Cincinnati, KY, to Flag City, OH. The FAA proposes to remove the segments from Pine Bluff, AR, to Dyersburg, TN. Therefore, the first part of V-47 would extend from Cunningham, KY, to Pocket City, IN. The second part of the route would extend from Cincinnati, KY to Flag City, OH, as currently charted.

V-54: V-54 currently consists of two separate parts: From Waco, TX, to Cedar Creek, TX; and From Texarkana, AR, to Kinston, NC. The FAA proposes to remove the segments from Marvell, AR, to Charlotte, NC. This would configure V-54 into three parts: From Waco, TX, to Cedar Creek, TX; From Texarkana, AR, to Little Rock, AR; and From Sandhills, NC, to Kinston, NC.

V-69: V-69 currently extends from El Dorado, AR, to Joliet, IL. The FAA proposes to remove the segments from El Dorado, AR, to Walnut Ridge, AR. As amended, V-69 would extend from Farmington, MO to Joliet, IL.

V-94: V-94 currently consists of two parts: From Blythe, CA, to Tuscola, TX; and From Cedar Creek, TX, to Holly Springs, MS. The FAA is proposing to remove the final segment from Greenville, MS, to Holly Springs, MS. As amended, V-94 would extend from Blythe, CA, to Tuscola, TX; and from Cedar Creek, TX to Greenville, MS.

V-140: V-140 currently consists of two parts: From Panhandle, TX, to London, KY; and from Bluefield, WV, to Casanova, VA. The FAA proposes to remove the Walnut Ridge, AR, Dyersburg, TN, and Hazard, KY, navigation aids from V-140. As a result, V-140 would consist of the following three parts: From Panhandle, TX, to Harrison, AR; From Nashville, TN, to London, KY; and From Bluefield, WV, to Casanova, VA. Other changes to V-140 are being proposed in a separate docket action.

V-278: V-278 currently consists of two parts: From Texico, NM, to Plainview, TX; and from Bowie, TX, to Vulcan, AL. The FAA proposes to remove the segments from Monticello, AR, to Vulcan, AL. The first part of V-278 would remain unchanged. The second part of the route would be amended as follows: From Bowie, TX; Bonham, TX; Paris, TX; Texarkana, AR; to INT Texarkana 088°(T)/081°(M) and Eldorado, AR 034°(T)/027°(M) radials. Note: When new radials are proposed in an NPRM both True (T) and Magnetic (M) degrees are stated. Only True degrees will be stated in the final rule.

V-305: V-305 currently extends from El Dorado, AR, to Kokomo, IN. The FAA proposes to remove Walnut Ridge, AR, and Malden, MO, from the route. This would split V-305 into two separate parts as follows: From Eldorado, AR, to Little Rock, AR; and From Cunningham, KY, to Kokomo, IN. Other changes to V-305 are being proposed in a separate docket action.

V-397: V-397 currently extends from Monroe, LA, to Marvell, AR. The FAA proposes to remove the entire route.

Full route descriptions of the above routes are listed in “The Proposed Amendment” section of this NPRM.

Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11F, dated August 10, 2021 and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the NAS.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2021-1082; Airspace Docket No. 21-ASO-16) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1082; Airspace Docket No. 21-ASO-16.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 to amend three, and remove four jet routes in the eastern United States. This action would support the VOR MON program by amending or removing certain jet route segments due to the planned decommissioning of ground-based navigation aids. Additionally, the proposed jet route changes would reduce aeronautical chart clutter by removing unneeded route segments.

The proposed route changes are as follows:

J-22: J-22 currently extends from Nuevo Laredo, Mexico, to Montebello, VA. The FAA proposes to remove the route segments from Vulcan, AL, to Montebello, VA. As proposed, the amendment route would extend from Nuevo Laredo, Mexico to Meridian, MS. The portion within Mexico is excluded.

J-39: J-39 currently extends from Montgomery, AL, to Rosewood, OH. The FAA proposes to remove the entire route.

J-46: J-46 currently extends from Tulsa, OK, to Volunteer, TN. The FAA proposes to remove the segment between Nashville, TN, and Volunteer, TN. As proposed, the amendment route would extend from Tulsa, OK, to Nashville, TN.

J-48: J-48 currently extends from the intersection of the Solberg, NJ, 264° and the Pottstown, PA, 050° radials, to Foothills, SC. The FAA proposes to remove the segment between Montebello, VA, and Foothills, SC. As proposed, J-48 would extend from the intersection of the above Solberg and Pottstown radials to Montebello, VA.

J-118: J-118 currently extends from Memphis, TN, to Spartanburg, SC. The FAA proposes to remove the entire route.

J-145: J-145 currently extends from Foothills, SC, to Charleston, WV. The FAA proposes to remove the entire route.

J-186: J-186 currently extends from Foothills, SC, to Appleton, OH. The FAA proposes to remove the entire route.

Jet routes are published in paragraph 2004 of FAA Order JO 7400.11F dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The jet routes listed in this document would be subsequently amended in, or removed, respectively, from FAA Order JO 7400.11

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would improve the efficient flow of air traffic within the NAS by lessening the dependency on ground-based navigation, and it would expand the availability of RNAV routes in the northcentral United States.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA- 2021-1043; Airspace Docket No. 21-ACE-4) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1043; Airspace Docket No. 21-ACE-4.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021 and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is planning decommissioning activities for the VOR portion of the Fort Dodge, IA, VORTAC with a proposed effective date of September 8, 2022. The Fort Dodge VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the NextGen Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR MON),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082. Although the VOR portion of the Fort Dodge, IA, VORTAC is planned for decommissioning, the co-located Distance Measuring Equipment (DME) and Tactical Air Navigation (TACAN) portions of the navigational aid are being retained in support of current and future RNAV procedures and Department of Defense mission requirements.

The ATS routes affected by the Fort Dodge, IA, VOR being decommissioned consist of J-82, J-94, Q-122, V-100, V-138, V-456, V-462, and V-505. With the planned decommissioning of the Fort Dodge VOR, the remaining ground-based navigational aid coverage in the area is insufficient to enable the continuity of these affected routes. As such, the proposal would result in the removal of airway segments for V-138, V-456, V-505; the creation of gaps in the ATS routes for J-82, J-94; the widening of the airway gap for V-100; and the entire removal of an airway for V-462. To overcome the loss of segments in the ATS routes, instrument flight rules (IFR) traffic may use adjacent low altitude VOR Federal airways, such as V-13, V-120, V-161, V-172, and T-392. IFR traffic may also use the remaining high altitude Jet Routes, such as J-84, J-100, J-128 and J-148. Pilots equipped with RNAV capabilities may also file point to point through the affected area using fixes that will remain in place, or receive air traffic control radar vectors. Visual flight rules (VFR) pilots, who elect to navigate through the affected area, may utilize the ATC services previously listed.

Additionally, the FAA proposes to extend the RNAV route, Q-122, 52-miles to the east. The extension of the Q-122 route would supplement the enroute structure for high altitude traffic, and facilitate the flow of traffic in the area southwest of the Chicago, IL, terminal area. This proposed new RNAV route would also support the FAA's plan to transition the National Airspace System from a ground-based surveillance and navigation system, to a satellite-based system.

Finally, the FAA proposes to remove the Fort Dodge, IA, Domestic Low Altitude Reporting point. The reporting point is no longer required by air traffic control after the proposed route amendments would be implemented.

The FAA is proposing an amendment to 14 CFR part 71 to amend Jet Routes J-82 and J-94; extend RNAV route Q-122; amend VOR Federal airways V-100, V-138, V-456, and V-505; remove VOR Federal Airway V-462; and remove the Fort Dodge, IA reporting point.

The proposed ATS route and reporting point amendments are described below.

J-82. J-82 currently extends between the Battle Ground, WA, VORTAC and the Goshen, IN, VORTAC. The FAA proposes to remove the route segment between the Sioux Falls, SD, VORTAC and the Dubuque, IA, VORTAC. As a result, the Jet route would extend between the Battle Ground, WA, VORTAC and Sioux Falls, SD, VORTAC; and between the Dubuque, IA, VORTAC and the Goshen, IN, VORTAC.

J-94. J-94 extends between the Mustang, NV, VORTAC and the Flint, MI, VORTAC. The FAA proposes to remove the route segment between the O'Neill, NE, VORTAC and Dubuque, IA, VORTAC. As a result, the Jet route would extend between the Mustang, NV, VORTAC and the O'Neill, NE, VORTAC; and between the Dubuque, IA, VORTAC and the Flint, MI, VORTAC.

Q-122. Q-122 currently extends between the MOGEE, CA, waypoint (WP) and the Fort Dodge, IA, VORTAC (FOD). The FAA is proposing to remove the Fort Dodge, IA, VORTAC route point from the route description and establish a new waypoint (VIRGN, IA), located 3.08 NM south of the current Fort Dodge, IA, VORTAC. The VIRGN, IA waypoint would support navigation, on Q-122, in lieu of the removed Fort Dodge, IA, VORTAC. From the VIRGN, IA waypoint, the FAA is proposing to extend Q-122, 52 miles to the east, to the VIGGR, IA fix, which would now become the easternmost endpoint of the airway. The FAA also proposes to remove the BEARR, UT fix and the O'Neil, NE, VORTAC (ONL) from the legal description only. Because the route points are on straight segments of the existing Q-122 route, it is not necessary to include them in the legal description. Although the BEARR, UT fix and the O'Neil, NE, VORTAC would be removed from the legal description, both would remain in service and continue to be charted on the route. The FAA also proposes to convert the KATES, NE fix to a waypoint, to support Q-122 navigation. The KATES, NE waypoint and the newly established VIRGN, IA waypoint, would also be charted to facilitate RNAV holding. As such, the proposed route, east of the KATES, NE waypoint, will overfly the VIRGN, IA, waypoint, located 3.08 nm south of the current Fort Dodge, IA, VORTAC, and will continue to the new airway endpoint at the VIGGR, IA, fix. As a result, the Q-122 route would extend between the MOGEE, CA, waypoint and the VIGGR, IA, fix.

V-100. V-100 extends between the Medicine Bow, WY, VOR/DME and the O'Neil, NE, VORTAC; between the Fort Dodge, IA, VORTAC and the Dubuque, IA, VORTAC; and between the Northbrook, IL, VOR/DME and the Litchfield, MI, VOR/DME. The FAA proposes to remove the segment between the Fort Dodge, IA, VORTAC and the Waterloo, IA, VOR/DME. The unaffected portions of the existing airway would remain as charted. Additional changes to other segments of V-100 have been proposed in a separate rulemaking proposal.

V-138. V-138 extends between the Riverton, WY, VOR/DME and the Sidney, NE, VOR/DME; and between the Grand Island, NE, VOR/DME and the Mason City, IA, VOR/DME. The FAA proposes to remove the segment between the Omaha, IA, VORTAC and the Mason City, IA, VOR/DME. As a result, V-138 would extend between the Riverton, WY, VOR/DME and the Sidney, NE, VOR/DME; and between the Grand Island, NE, VOR/DME and the Omaha, IA, VORTAC.

V-456. V-456 extends between the Fort Dodge, IA, VORTAC and the Flying Cloud, MN, VOR/DME. The FAA proposes to remove the segment between the Fort Dodge, IA, VORTAC and the Mankato, MN, VOR/DME. As a result, V-456 would extend between the Mankato, MN, VOR/DME and the Flying Cloud, MN, VOR/DME.

V-462. V-462 extends between the Fort Dodge, IA, VORTAC and the Sioux Falls, SD, VORTAC. The FAA proposes to remove the airway in its entirety.

V-505. V-505 extends between the Des Moines, IA, VORTAC and the Gopher, MN, VORTAC; and between the Duluth, MN, VORTAC and the International Falls, MN, VOR/DME. The FAA proposes to remove the segment between the Des Moines, IA, VORTAC and the Mason City, IA, VOR/DME. As a result, V-505 would extend between the Mason City, IA, VOR/DME and the Gopher, MN, VORTAC; and between the Duluth, MN, VORTAC and the International Falls, MN, VOR/DME.

Fort Dodge: The Fort Dodge, IA, Domestic Low Altitude Reporting Point would be removed.

All of the navigational aid radials in the ATS Route descriptions below are stated in True degrees.

United States Jet Routes, RNAV Q-routes, VOR Federal airways, and Domestic Low Altitude Reporting points are published in paragraphs 2004, 2006, 6010(a), and 7001, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which are incorporated by reference in 14 CFR 71.1. The ATC routes listed in this document would be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessening the dependency on ground based navigation.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-1083; Airspace Docket No. 19-AAL-62) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1083; Airspace Docket No. 19-AAL-62”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https:// www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub. L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite based navigation Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum En route Altitude (MEA) or Global Navigation Satellite System Minimum En route Altitude (GNSS MEA); (b) the replacement of the colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA proposes to amend RNAV route T-229 to provide an alternate waypoint (WP), VANTY WP, in anticipation of the future decommissioning of the Point Hope, AK, (PHO) NDB. The proposed amendment would also provide a lowered GNSS MEA, from 4,000 Mean Sea Level (MSL) to 3,000 MSL, between the SURGE WP and the VANTY WP. The SURGE WP is not a turn point on the route, so the proposal does not include it in the legal description but it will be depicted on the sectional chart.

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV route T-229 in the vicinity of Point Hope, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.

T-229: The FAA proposes to amend T-229 from the SURGE WP to the newly established VANTY WP. The rest of the route would remain unchanged.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV listed in this document would be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessening the dependency on ground based navigation.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-1097; Airspace Docket No. 19-AAL-64) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-1097; Airspace Docket No. 19-AAL-64”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub. L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite based navigation Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum En route Altitude (MEA) or Global Navigation Satellite System Minimum En route Altitude (GNSS MEA); (b) the replacement of the colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA proposes to amend RNAV route T-233 to provide an alternate reporting point, the Bettles, AK, (BTT) VHF omnidirectional range with distance measuring equipment (VOR/DME), as well as a new waypoint (WP) the TOMPY WP, in anticipation of the future decommissioning of the Evansville, AK, (EAV) NDB, and the Ambler, AK, (AMF) NDB. Additionally, the proposed route would extend from the TOMPY WP to the new CIBDU WP and then to the Kotzebue, AK, (OTZ) VOR/DME, providing an alternate for VOR Federal airwayV-401 with a lower GNSS MEA.

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV route T-233 in the vicinity of Kotzebue, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.

T-233: The FAA proposes to amend T-233 by extending the route from the Kotzebue, AK, (OTZ) VOR/DME to the CIBDU, AK, WP to the TOMPY, AK, WP. Due to the positioning of the TOMPY WP, the KORKY WP would no longer be a turn point, so it will not be included in the proposed legal description.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11F dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The RNAV listed in this document would be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this ANPRM via one of the two methods identified above and by the deadline stated above. All comments must be submitted in the English language, or accompanied by an English language translation.

Please note that all comments received are considered part of the public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

The Department may withhold from public viewing information provided in comments that it determines is offensive or may adversely impact the privacy of a third party. For additional information, please read the privacy notice that is available via the link in the footer of https://www.regulations.gov.

To inspect the agency's public docket file in person, you must make an appointment with the FARA Unit. Please see the FOR FURTHER INFORMATION CONTACT paragraph above for FARA Unit contact information.

The Foreign Agents Registration Act of 1938, 22 U.S.C. 611 et seq. (FARA or the Act) was enacted to ensure that the government and the American people are aware of people who are acting within this country as agents of foreign principals and are informed about their activities undertaken to influence public opinion or governmental action on political or policy matters. FARA requires that people acting as agents of foreign principals, within the meaning of the statute, make periodic public disclosures of their agency relationship and activities, as well as their receipts and disbursements in support of these activities. Disclosure of the required information allows the American public and government officials to evaluate the agents' statements and activities with knowledge of the foreign interests they serve. The FARA Unit of the Counterintelligence and Export Control Section (CES) in the National Security Division (NSD) is responsible for the administration and enforcement of FARA.

The Act gives the Attorney General the authority to issue “rules, regulations, and forms as he may deem necessary to carry out the provisions” of the Act. 1 Under that authority, the Attorney General has issued regulations covering a range of administrative and enforcement functions. 2 The regulations were last amended in 2007. The Department is now considering amending and updating the regulations to clarify key substantive provisions, such as the attorney and commercial exemptions. Other changes under consideration would modernize the regulations to clarify how they apply to social media and electronic filing, among other things.

Before issuing a NPRM with specific regulatory text for public comment, the Department is seeking preliminary input from the public on the regulations as a whole and in response to the specific questions set forth below:

Pursuant to 22 U.S.C. 611(c), an “agent of a foreign principal” is “any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal,” who does any of the following:

• Engages within the United States in political activities, such as intending to influence any U.S. Government official or the American public regarding U.S. domestic or foreign policy or the political or public interests of a foreign government or foreign political party;

• Acts within the United States as a public relations counsel, publicity agent, information service employee, or political consultant;

• Solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value within the United States; or

• Represents within the United States the interests of a foreign principal before U.S. Government officials or agencies.

In addition, 22 U.S.C. 611(p) defines “political consultant” to mean “any person who engages in informing or advising any other person with reference to the domestic or foreign policies of the United States or the political or public interest, policies, or relations of a foreign country or of a foreign political party.”

Question 1: Should the Department incorporate into its regulations some or all of its guidance addressing the scope of agency, which is currently published as part of the FARA Unit's FAQs on its website? See https://www.justice.gov/nsd-fara/page/file/1279836/download. If so, which aspects of that guidance should be incorporated? Should any additional guidance currently included in the FAQs, or any other guidance, be incorporated into the regulations?

Question 2: Should the Department issue new regulations to clarify the meaning of the term “political consultant,” including, for example, by providing that this term is generally limited to those who conduct “political activities,” as defined in 22 U.S.C. 611(o)?

Two of the three exemptions in 22 U.S.C. 613(d) apply to “[a]ny person engaging or agreeing to engage only (1) in private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal; or (2) in other activities not serving predominantly a foreign interest.” In 28 CFR 5.304(b), the word “private” is defined to include activities on behalf of a foreign principal that is “owned or controlled by a foreign government, so long as the activities do not directly promote the public or political interests of the foreign government.” For activities on behalf of state-owned enterprises, 28 CFR 5.304(c) provides that the phrase “not serving predominantly a foreign interest” includes “political activities” that:

• Are “directly in furtherance of the bona fide commercial, industrial, or financial operations of the foreign corporations”;

• Are not “directed by a foreign government or foreign political party”; and

• “[D]o not directly promote the public or political interests of a foreign government or of a foreign political party.”

Because the regulation in 5.304(c) addresses only activities on behalf of state-owned enterprises, it does not provide guidance on whether political activities on behalf of other foreign principals fall within the exemption. The Department is considering issuing regulations to address contexts not currently covered by the existing regulations. The Department is also seeking comment on whether to revise the existing regulations to address the scope of the exemptions, such as by limiting the scope of the exemptions so that they would not apply if the activities promoted—either directly or indirectly—the public or political interests of a foreign government or foreign political party.

Question 3: Should the Department issue a regulation addressing how 22 U.S.C. 613(d)(2) applies to political activities on behalf of foreign principals other than state-owned enterprises? If so, how should the Department amend the regulation to address when such activities do not serve “predominantly a foreign interest”?

Question 4: Is the language in 28 CFR 5.304(b), (c), which provides that the exemptions in sections 613(d)(1) and (d)(2) do not apply to activities that “directly promote” the public or political interests of a foreign government or political party, sufficiently clear? And does that language appropriately describe the full range of activities that are outside the scope of the exemptions because they promote such interests, including indirectly? Should the language be clarified, and, if so, how?

Question 5: What other changes, if any, should the Department make to the current regulations at 28 CFR 5.304(b) and (c) relating to the exemptions in 22 U.S.C. 613(d)(1) and (2)?

This statutory exemption, 22 U.S.C. 613(e), applies to “[a]ny person engaging or agreeing to engage only in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts.” The regulation in 28 CFR 5.304(d) provides that this exemption “shall not be available to any person described therein if he engages in political activities as defined in [22 U.S.C. 611(o)] for or in the interests of his foreign principal.”

Question 6: Should the Department issue additional or clarified regulations regarding this exemption to clarify the circumstances in which this exemption applies? If so, how should those additional regulations clarify the scope of the exemption?

This statutory exemption, 22 U.S.C. 613(g), applies to “[a]ny person qualified to practice law, insofar as he engages or agrees to engage in the legal representation of a disclosed foreign principal before any court of law or any agency of the Government of the United States,” provided that for purposes of the exemption “legal representation does not include attempts to influence or persuade agency personnel or officials other than in the course of judicial proceedings, criminal or civil law enforcement inquiries, investigations, or proceedings, or agency proceedings required by statute or regulation to be conducted on the record.” The exemption applies where a person, qualified to practice law, engages or agrees to engage in the legal representation of a disclosed foreign principal before any court or agency of the Government of the United States. The regulation at 28 CFR 5.306(a) provides that the exemption does not apply to an agreement to provide legal representation to further political activities, as defined by FARA, to influence or persuade agency personnel or officials, other than in the course of: Judicial proceedings; criminal or civil law enforcement inquiries, investigations, or proceedings; or other agency proceedings required by law to be conducted on the record. The exemption may apply to an attorney's activities that relate to such proceedings so long as the activities do not go beyond the bounds of normal legal representation of a client in the matter.

Question 7: Should the Department amend 28 CFR 5.306(a) to clarify when activities that relate to criminal, civil, or agency proceedings are “in the course of” such proceedings because they are within the bounds of normal legal representation of a client in the matter for purposes of the exemption in 22 U.S.C. 613(g)? If so, how should the Department amend the regulation to address that issue?

Question 8: What other changes, if any, should the Department make to 28 CFR 5.306 to clarify the scope of the exemption in 22 U.S.C. 613(g)?

Question 9: Are there other aspects of the statutory exemptions that the Department should clarify, whether to make clear additional circumstances in which registration is, or is not, required?

Any present or prospective agent of a foreign principal, or the agent's attorney, may request from the Assistant Attorney General for National Security a statement of present enforcement intentions (also known as a “Rule 2” or an “advisory opinion”) as to whether the agent has an obligation to register under FARA. These requests must be made in writing to the FARA Unit. The subject of the request must be an actual event, not a hypothetical situation, and may not involve only past conduct. Any request must be specific and contain in detail all relevant and material information, including the names of the potential agents and principals, the nature of their activities, and a copy of any existing or proposed contract. Responding to each request involves significant attorney research and analysis to address fully the facts presented in the request.

Question 10: Should the Department revise 28 CFR 5.2(i) to allow the National Security Division longer than 30 days to respond to a Rule 2 request, with the time to begin on the date it receives all of the information it needs to evaluate the request? If so, what is a reasonable amount of time?

Question 11: Should the Department include with its published Rule 2 advisory opinions the corresponding request, with appropriate redactions to protect confidential commercial or financial information, so that the public may better understand the factual context of the opinion?

Question 12: What other changes, if any, should the Department make to the current process for using advisory opinions pursuant to 28 CFR 5.2?

22 U.S.C. 614(b) requires that any informational materials that are or will be disseminated to two or more persons by an agent of a foreign principal contain a “conspicuous statement” that the materials are distributed by an agent of a foreign principal and that additional information is on file with the U.S. Department of Justice. Section 614(b) also provides that the “Attorney General may by rule define what constitutes a conspicuous statement.” The regulations implementing this statutory requirement were last amended in 2003 and do not reflect the challenges of labeling informational materials disseminated through various online media platforms.

Question 13: Should the Department define by regulation what constitutes “informational materials”? If so, how should it define the term?

Question 14: What changes, if any, should the Department make to the current regulation, 22 CFR 5.402, relating to labeling informational materials to account for the numerous ways informational materials may appear online? For example, how should the Department require conspicuous statements on social media accounts or in other communications, particularly where text space is limited?

Question 15: Should the Department amend the current regulation, 22 CFR 5.402(d), relating to “labeling informational materials” that are “televised or broadcast” by requiring that the conspicuous statement appear at the end of the broadcast (as well as at the beginning), if the broadcast is of sufficient duration, and at least once-per hour for each broadcast with a duration of more than one hour, or are there other ways such information should be labeled?

Question 16: Should any changes to regulations relating to the labeling of “televised or broadcast” informational materials also address audio and/or visual informational materials carried by an online provider? And, if so, should the regulations addressing labeling of such audio and/or visual information materials be the same as for televised broadcasts or should they be tailored to online materials; and, if so, how?

Question 17: Should the Department amend 22 CFR 5.402 to ensure that the reference to the “foreign principal” in the conspicuous statement includes the country in which the foreign principal is located and the foreign principal's relation, if any, to a foreign government or foreign political party; and, if so, how should the regulations be clarified in this regard?

The Department now uses an e-File system with web-fillable forms. This system makes it easier for new registrants to keep their registrations current and helps the public search for and download information about FARA registrants.

Questions 18: What changes, if any, should the Department make to its regulations to account for the e-File system that was adopted after the regulations were last updated in 2007?

While administering FARA, the FARA Unit has found that being able to contact agents via business telephone numbers and business email addresses promotes the efficient administration of FARA. Neither the Act nor the current regulations requires agents to provide this information.

Question 19: Should the Department amend 28 CFR 5.1 to require—separate from the registration statements, supplements, and related documentation—that agents provide their business telephone numbers and business email addresses to facilitate better communications with the FARA Unit?

Comments that will provide the most assistance to the Department in issuing a NPRM will be those that answer one or more of the specific questions asked; explain what changes, if any, should be made to the regulations and why; and support that position with accompanying data, information, or legal authority.

In addition to providing comments on the specific nineteen questions listed above, the Department is also seeking input from the public on any other aspect of the current FARA regulatory structure that the public believes should involve the issuance, amendment, or rescinding of any regulation not otherwise identified above.

This ANPRM has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), The Principles of Regulation, in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation. This ANPRM is not a “significant” regulatory action pursuant to Executive Order 12866 and, accordingly, the Office of Management and Budget (OMB) has not reviewed it.

This action does not propose or impose any requirements; rather, this ANPRM is being published to seek information and comments from the public about possible revisions and amendments to FARA's current regulatory scheme.

The requirements of the Regulatory Flexibility Act (RFA) do not apply to this action because, at this stage, it is an ANPRM and not a “rule” as defined in 5 U.S.C. 601.

Following review of the comments received in response to this ANPRM, if NSD proceeds with a notice or notices of proposed rulemaking regarding this matter, the Department will conduct all relevant analyses as required by statute or Executive Order.

States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, EPA will implement those requirements and prohibitions in Michigan including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.

On April 8, 2021, Michigan submitted a complete program revision application seeking authorization of changes to its hazardous waste program that correspond to certain Federal rules promulgated between January 13, 2015 and January 3, 2018 (also known as RCRA Clusters XXV and XXVI). EPA concludes that Michigan's application to revise its authorized program meets all of the statutory and regulatory requirements established under RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA proposes to grant Michigan final authorization to operate its hazardous waste program with the changes described in the authorization application, and as outlined below in Section G of this document.

Michigan has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of HSWA, as discussed above.

If Michigan is authorized for the changes described in Michigan's authorization application, these changes will become part of the authorized State hazardous waste program and will therefore be federally enforceable. Michigan will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA would maintain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

• Conduct inspections, and require monitoring, tests, analyses and reports;

• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action will not impose additional requirements on the regulated community because the regulations which EPA is proposing to authorize Michigan are already effective under state law and are not changed by this proposed action.

If EPA receives comments on this proposed action, we will address all such comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time.

Michigan initially received final authorization on October 16, 1986, effective October 30, 1986 (51 FR 36804-36805), to implement the RCRA hazardous waste management program. We granted authorization for changes to Michigan's program on November 24, 1989, effective January 23, 1990 (54 FR 48608); on January 24, 1991, effective June 24, 1991 (56 FR 18517); on October 1, 1993, effective November 30, 1993 (58 FR 51244); on January 13, 1995, effective January 13, 1995 (60 FR 3095); on February 8, 1996, effective April 8, 1996 (61 FR 4742); on November 14, 1997, effective November 14, 1997 (62 FR 61775); on March 2, 1999, effective June 1, 1999 (64 FR 10111); on July 31, 2002, effective July 31, 2002 (67 FR 49617); on March 9, 2006, effective March 9, 2006 (71 FR 12141); on January 7, 2008 (73 FR 1077), effective January 7, 2008; on March 2, 2010, effective March 2, 2010 (75 FR 9345); on August 28, 2015 (80 FR 52194), effective August 28, 2015; and on June 6, 2019 (84 FR 26359), effective June 6, 2019.

On April 8, 2021, Michigan submitted a final complete program revision application, seeking authorization of changes to its hazardous waste management program in accordance with 40 CFR 271.21. EPA proposes to determine, subject to receipt of written comments that oppose this action, that Michigan's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, EPA is proposing to authorize Michigan for the following program changes:

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking (FNPRM), FCC 21-116, adopted on November 4, 2021 and released on November 5, 2021. The full text of this document is available electronically via the FCC's Electronic Document Management System (EDOCS) website at https://www.fcc.gov/edocs or via the FCC's Electronic Comment Filing System (ECFS) website at https://www.fcc.gov/ecfs. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) 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 Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In this Second Further Notice of Proposed Rulemaking (FNPRM), we propose changes to our Next Gen TV rules designed to preserve over-the-air (OTA) television viewers' access to the widest possible range of programming while also supporting television broadcasters' transition to the next generation of broadcast digital television (DTV) technology. In response to a Petition filed by the National Association of Broadcasters (NAB), we propose to allow Next Gen TV stations  2 to include within their license certain of their non-primary video programming streams (multicast streams)  3 that are aired in a different service on “host” stations  4 during a transitional period, using the same licensing framework, and to a large extent the same regulatory regime, established for the simulcast of primary video programming streams on “host” station facilities. 5 Given that Next Gen TV stations must, without any additional allocation of spectrum, prioritize serving ATSC 1.0 viewers while voluntarily transitioning to ATSC 3.0, we seek to take actions that will minimize viewer disruption as much as possible. Specifically, this FNPRM seeks to facilitate and encourage partnerships that will minimize potential disruptions by permitting stations in a market to work together to preserve viewers' access to ATSC 1.0-formatted programming during the transition. We intend to facilitate broadcasters' voluntary transition to 3.0, which can provide consumers with the benefit of new and innovative services, while protecting consumers who continue to rely on 1.0 equipment.

2. Next Gen TV is the newest broadcast TV transmission standard, developed by the Advanced Television Systems Committee (ATSC), that promises to enable broadcasters to deliver an array of new services and enhanced content features to consumers. In 2017, the Commission authorized television broadcasters to use the Next Gen TV transmission standard, also called “ATSC 3.0” or “3.0,” on a voluntary, market-driven basis. The Commission required that broadcasters voluntarily deploying ATSC 3.0 service must, with very limited exceptions, 6 continue to air at least their primary stream using the current-generation DTV transmission standard, also called “ATSC 1.0” or “1.0,” to their viewers through “local simulcasting.” Under the Commission's rules, Next Gen TV broadcasters are encouraged, but not required, to simulcast their 3.0 multicast streams in a 1.0 format.

3. The Commission found that the local simulcasting requirement is crucial to deploying Next Gen TV service in a manner that minimizes viewer disruption. The Next Gen TV standard is not backward-compatible with existing TV sets or receivers, which have only ATSC 1.0 and analog tuners. Accordingly viewers will be unable to watch ATSC 3.0 transmissions on their existing televisions without additional equipment. Thus, it is critical that Next Gen TV broadcasters continue to provide service using the current ATSC 1.0 standard while the marketplace adopts devices compatible with the new 3.0 transmission standard in order to avoid forcing viewers to acquire expensive new equipment or depriving them of their local television service during the transition. Because a TV station cannot, as a technical matter, simultaneously broadcast in both 1.0 and 3.0 format from the same facility on the same physical channel, local simulcasting must be effectuated through voluntary partnerships that broadcasters seeking to provide Next Gen TV service enter into with other broadcasters in their local markets. A Next Gen TV station must partner with another television station ( i.e., a temporary “host” station) in its local market to either: (1) Air an ATSC 3.0 channel at the temporary host's facility, while using its original facility to continue to provide an ATSC 1.0 simulcast channel, or (2) air an ATSC 1.0 simulcast channel at the temporary host's facility, while converting its original facility to the ATSC 3.0 standard in order to provide a 3.0 channel. 7 A Next Gen TV station's ATSC 1.0 “simulcast” must be “substantially similar” to that of the primary video programming stream on the ATSC 3.0 channel.

4. The process for considering applications to deploy ATSC 3.0 service includes coverage requirements for a Next Gen TV station's ATSC 1.0 simulcast signal. 8 The Commission sought to minimize disruption to viewers resulting from the voluntary deployment of ATSC 3.0 while recognizing that if a station moves its ATSC 1.0 signal to a partner simulcast host station with a different transmitter location, some OTA viewers may no longer be able to receive the station's 1.0 signal. Among other obligations, the Commission requires the Next Gen TV station to select a partner 1.0 simulcast host station that is assigned to its same designated market area (DMA) and from which it will continue to provide ATSC 1.0 simulcast service to its entire community of license. 9

5. According to NAB, as ATSC 3.0 deployment has progressed, broadcasters interested in transitioning to ATSC 3.0 while maintaining their current programming streams have faced challenges finding partner stations willing to host broadcasters' multicast streams through private contractual agreements. Moreover, NAB states that Next Gen TV broadcasters want to “continue to serve audiences with multicast streams,” even though they are not required to do so. NAB contends, however, that stations are hesitant to serve as hosts pursuant to private arrangements due to concerns about regulatory liability and whether such private multicast agreements are expressly permitted under the Commission's ATSC 3.0 rules. Moreover, NAB observes that “a purely contractual approach [to ATSC 3.0 deployment sharing arrangements] would exclude noncommercial stations from participating in sharing arrangements to host commercial multicast streams” under 47 U.S.C. 399B. In addition, NAB asserts that if broadcasters execute hosting agreements for their multicast streams that are not reflected on the license of the originating station, “the Commission might not retain enforcement authority” over the originating station with respect to that guest stream. 10

6. Because our existing rules do not address the licensing of multicast streams, even with regard to the host that is airing a station's primary stream, the Media Bureau implemented an interim process by which a Next Gen TV broadcaster that has converted or is seeking to convert its facility to 3.0 can seek special temporary authority (STA) to air 1.0 multicast streams on a host station. Just as under the current rules for primary guest streams, these STAs permit a guest multicast stream to be treated as if it originated from the Next Gen TV broadcaster's facility, as opposed to the host station's facility, for purposes of the Commission's rules and the Communications Act. The STAs granted to date are valid for six months but may be renewed. This case-by-case process is resource-intensive for both the Commission and broadcasters, and under this approach it is difficult for both Commission staff and potential viewers to track where streams are being hosted.

7. NAB Petition. In November 2020, NAB filed a Petition for Declaratory Ruling and Petition for Rulemaking (Petition) seeking:  11

(1) Clarification or a rulemaking to allow a Next Gen TV broadcaster to license its simulcast multicast stream(s) either together with its primary stream on the primary simulcast host or on different simulcast host(s);  12

(2) A rulemaking to allow a Next Gen TV broadcaster to license its “non-simulcast” 1.0 multicast stream(s) ( i.e., multicast stream(s) aired only in 1.0 format and not in 3.0 format) either together with its primary stream on its primary 1.0 host or on different 1.0 simulcast host(s);  13 and

(3) A rulemaking to allow a Next Gen TV broadcaster to license its “non-simulcast” 3.0 multicast stream(s) ( i.e., multicast stream(s) aired only in 3.0 format and not in 1.0 format) either together with its primary stream on its primary 3.0 host or on different 3.0 host(s). 14

NAB requests that the regulatory treatment of multicast streams mirror the existing licensing framework for primary streams. Moreover, NAB asserts that its requested rule changes would not create any new cable or satellite carriage rights for multicast streams, which are not entitled to mandatory carriage. NAB later filed an ex parte expanding on its proposal by suggesting specific revisions to the Commission's ATSC 3.0 rules that would implement the changes and clarifications requested in its Petition.

8. The Media Bureau placed the Petition on Public Notice and received comments and reply comments from 12 parties, including 10 broadcast station groups and associations (including NAB) and two MVPD associations. 15 As discussed more fully below, all of the broadcast station groups and associations support the Petition's proposals. The two MVPD associations that commented generally do not oppose a rulemaking, but express particular concerns about the effect on the local television marketplaces of permitting Next Gen TV stations to license multicast streams that are not being simulcast on host stations and, in particular, of permitting those stations to license such multicast streams on multiple hosts.

9. We propose to adopt rules to address the first two licensing scenarios set forth by NAB (as described above), so as to preserve, to the extent possible, consumer access to multicast programming in 1.0 format during the ATSC 3.0 transition without the need for new equipment. First, we therefore tentatively conclude that Next Gen TV stations may license one or more simulcast multicast streams on a host station or stations, whether that guest stream is the 3.0 broadcast or the 1.0 simulcast (“simulcast” multicast streams). Second, we propose that Next Gen TV stations which are broadcasting in 3.0 on their own channels may license one or more multicast streams aired only in 1.0 format on a host station or stations even if they are not simulcasting that stream in 3.0 (“non-simulcast” 1.0 multicast streams), consistent with any limits as discussed below. 16 To permit the licensing of multicast streams on a host, we propose that each of the originating station's multicast streams will be licensed as a temporary channel in the same manner as its primary stream on the primary host. That is, each of the originating station's guest multicast streams aired on a host will be considered to be an additional, separately authorized channel under the originating station's single, unified license. As to the third of NAB's scenarios, in which a Next Gen TV station broadcasting in 1.0 on its own channel might seek to license multicast streams aired only in 3.0 format on a 3.0 host or hosts (“non-simulcast” 3.0 multicast streams), 17 we decline at this time to seek comment on what appears to be a purely hypothetical scenario. In addition to these scenarios, we explore another licensing scenario that has come to our attention from industry. Specifically, we seek comment on whether our rules should permit an originating station to rely on simulcasting its primary stream on two separate partner stations in order to minimize service loss from its transition to 3.0.

10. After considering these various licensing arrangements, we next explore the policy concerns raised in the record with respect to these arrangements, including whether there is a need, as some commenters suggest, to limit the ability of stations to aggregate spectrum or programming streams through the licensing of programming streams on multiple partner hosts. Finally, we tentatively conclude that we should apply certain ATSC 3.0 transition rules that currently apply only to primary simulcast streams to both simulcast and non-simulcast licensed multicast streams aired on host stations, as NAB has proposed, 18 with certain exceptions as detailed below, and tentatively conclude that any rules adopted pursuant to this FNPRM should apply until the Commission eliminates the mandatory local simulcasting requirement.

11. We seek to craft rules that will protect current OTA viewers by facilitating and encouraging Next Gen TV stations to preserve 1.0 multicast streams during the transition while also creating an environment that does not stifle innovative new services that may be offered to OTA viewers through the deployment of ATSC 3.0 service. Pursuant to the current ATSC 3.0 rules, Next Gen TV stations are not required to simulcast their multicast streams but may choose to air them pursuant to private contractual arrangements. 19 NAB explains that some host stations may be reluctant, however, to accept legal responsibility when airing another station's multicast stream(s), even if they can obtain indemnification from such station through a private contractual agreement. Further, many Next Gen Broadcasters cannot simulcast all of their multicast streams because of capacity and other practical constraints. The licensed multicast stream approach proposed herein seeks to address these concerns by providing the industry with regulatory certainty about the legal treatment of multicast streams and facilitating their airing on multiple stations. A licensed multicast approach would not only make clear that the originating station (and not the host station) is responsible for regulatory compliance regarding the multicast stream being aired on a host station but also give the Commission clear enforcement authority over the originating station in the event of a rule violation on the hosted multicast programming stream. In addition, this approach seeks to facilitate noncommercial educational (NCE) stations' 3.0 deployment by allowing them to serve as hosts to commercial stations' multicast streams without violating the prohibition on broadcasting advertisements over spectrum dedicated to noncommercial use.

12. We tentatively conclude that to address NAB's first scenario, a Next Gen TV station may license one or more of its multicast streams, hosted by one or more partner stations, in situations where the Next Gen TV station is airing such multicast stream in “substantially similar” fashion  20 in both 1.0 and 3.0 formats. 21 This would include situations in which a multicast stream is aired together with the Next Gen TV station's primary stream on the primary host, as well as situations in which a multicast stream is aired on a host different from the primary host. In either case, we tentatively conclude that the Next Gen station must air one of the simulcast multicast streams—either the 1.0 or 3.0.on its own (non-host) channel. No commenter opposes this prong of NAB's proposal or raises any concerns about permitting the licensing of simulcast multicast streams. We also tentatively conclude that any multicast streams treated as “simulcasts” of each other under this section must be “substantially similar.” Although these rules, like the ATSC 3.0 transition rules generally, do not increase the amount of spectrum available to television broadcasters in a market, we tentatively conclude that this proposal may help address specific Next Gen TV stations' capacity constraints by facilitating the participation of stations uncomfortable with a purely contractual approach and making the participation of NCE stations legally permissible. We seek comment on these tentative conclusions. Is there any reason to treat “simulcast” multicast streams differently than “simulcast” primary streams in this regard? As discussed below, like local simulcasting arrangements for primary streams, hosting arrangements for multicast streams are temporary ones made to facilitate the station's transition to 3.0 service.

13. We agree with NAB that the adoption of such a licensing process will help preserve existing service in the market by recognizing what CMG calls the “multi-party simulcasting model that has evolved” as a result of limited spectrum. 22 Moreover, we believe that facilitating the licensing of simulcast multicast channels best meets our dual goals of facilitating the transition to 3.0 and protecting current 1.0 viewers. 23

14. We tentatively conclude that to address the second scenario set forth by NAB, a Next Gen TV station that is broadcasting in 3.0 on its own channel may license one or more 1.0 multicast streams aired on a 1.0 host or hosts, even when it is not simulcasting that multicast stream in a 3.0 format. 24 We seek comment on this tentative conclusion, including our conclusion that we should limit this proposal to those Next Gen TV stations broadcasting in 3.0 on their own channels. Although NAB suggests such a hypothetical, we are unaware of any station broadcasting in 1.0 on its own channel that has sought 1.0 hosts for its multicast programming, so see no reason to provide such flexibility in these proposed rules. Perhaps more fundamentally, it is unclear that providing such flexibility is necessary either to facilitate the transition to 3.0 or to protect current 1.0 viewers. 25

15. We tentatively find that, as NAB contends, allowing multicast licensing for non-simulcast 1.0 multicast streams would benefit consumers by preserving viewer access to 1.0 multicast streams in situations where broadcasters that have transitioned to 3.0 on their own channels lack capacity to air their multicast streams on their 3.0 facilities. We recognize that, at this early stage of the transition, ATSC 3.0 capacity will be limited. During the initial roll-out of 3.0 service, we expect markets will generally start with one or two ATSC 3.0 “lighthouse” stations, leaving capacity on 3.0 lighthouse stations mostly—if not entirely—for Next Gen TV station's primary streams. 26 We agree with broadcasters that denying them this flexibility would likely lead them to stop broadcasting some 1.0 multicast streams altogether. We therefore tentatively find that, by extending our multicast licensing approach to non-simulcast 1.0 multicast streams, we would not only encourage Next Gen TV broadcasters to preserve the multicast streams viewers watch today, but also facilitate their transition to 3.0 by making it easier for them to continue serving their existing viewers even while 3.0 spectrum is limited.

16. We seek comment about whether licensing non-simulcast 1.0 multicast streams raises specific concerns. 27 We observe that, unlike simulcast streams, non-simulcast 1.0 multicast streams aired on a host would not be tied to a specific programming stream aired by the originating station. We also observe that non-simulcast 1.0 multicast licensing is only necessary while 3.0 capacity is limited, because with sufficient 3.0 capacity a station could simulcast its multicast streams. Should we limit the licensing of non-simulcast 1.0 multicast streams only to situations where 3.0 capacity is demonstrably limited because of the hosting of partner streams or otherwise restrict the licensing of non-simulcast streams? Why or why not?

17. We seek comment on ATVA's assertion that, under the non-simulcast licensing proposal, a Next Gen TV station could air a single SD primary stream on its 3.0 signal and provide data services on its remaining 3.0 spectrum, while licensing host spectrum to air its 1.0 primary and multicast streams. To our knowledge, no situation like this has arisen to date, even though dozens of 3.0 transitions have begun with programming streams carried by partner hosts (in the case of primary streams) and private contractual partners. While we consider this situation unlikely early in the transition because of 3.0 capacity constraints, we seek comment on this understanding and acknowledge that this could occur as the transition progresses. 28 However, given that 3.0 broadcasters will be seeking to attract viewers, we note that they have touted offering primary streams in HD, if not UHD format, as a key selling point for the 3.0 service. Moreover, as discussed more below, our grant of authority for Next Gen TV broadcasters to license host spectrum is temporary. Finally, we seek comment on NCTA's request that we consider “enhanced transparency and disclosure requirements” for ATSC 3.0 host partner arrangements, particularly those involving non-simulcast streams. What would such requirements entail, what benefits would they provide, and what costs would they impose? We seek comment on these issues.

18. We decline to seek comment on the third prong of NAB's proposal, which would allow a Next Gen TV station that continues to broadcast in 1.0 on its own channel to license 3.0 multicast streams aired on a host station even when it is not simulcasting those multicast streams in a 1.0 format. NAB itself concedes that the issue of non-simulcast 3.0 multicast streams is likely to arise only in the later stages of the transition. Significantly, we also note that, of the 35 STA requests the Bureau has reviewed to date, none has asked us to license a non-simulcast 3.0 multicast stream. We thus conclude that seeking comment on NAB's third scenario at this time would be premature.

19. We tentatively conclude that, under certain circumstances, a Next Gen TV station may simulcast its primary stream programming both on its primary stream host and on a multicast stream carried by a different partner station in order to minimize the impact of service loss that would result if it were only able to air its primary stream on a single host. 29 We expect this situation will arise only when an applicant intends to broadcast in 3.0 on its own channel and is unable to find a partner 1.0 host that could, on its own, provide coverage of its primary stream to 95 percent of the applicant's 1.0 service area. In such cases, the application will be reviewed under the non-expedited processing standard. 30 Applicants whose applications are reviewed under the non-expedited processing standard are required to minimize the impact of the expected service loss, but the Commission did not require a specific method for doing so. The Bureau recently considered an STA application which found that airing a simulcast of the originating station's primary stream on two different hosts was “an acceptable method for mitigating ATSC 1.0 service loss under the non-expedited processing standard.”  31 Significantly, the Bureau noted that the two hosts in question were NCEs, and found that “permitting NCE stations to participate in the ATSC 3.0 rollout arrangements in this manner is critical to the success of the transition.” The Bureau therefore granted an STA request to authorize the multicast streams, including the stream with the primary programming. We tentatively conclude that similarly situated applicants  32 seeking to rely on one licensed multicast stream carrying primary programming to minimize the impact of service loss may have their applications considered through the non-expedited application process instead of through an STA. We also tentatively conclude that any approval of such an approach would require that the licensed multicast stream airing the primary programming be a “substantially similar” simulcast of the Next Gen TV station's primary stream. We also tentatively conclude that, if such application is granted, we will consider the 1.0 host station of the multicast stream to be licensed in the same manner as the primary stream host. Providing a license will permit NCE stations to host commercial primary multicast streams in a manner that is consistent with 47 U.S.C. 399B. We seek comment on these tentative conclusions.

20. We also seek comment on whether we should consider this approach to be an acceptable method for mitigating ATSC 1.0 service loss for any other types or groups of applicants. We recognize that each programming stream devoted to simulcasting a primary stream is one fewer that could be devoted to multicast programming, potentially reducing the diversity of programming available to viewers in order to ensure the widest availability of the most popular programming. We also note that a station airing its primary stream programming on two hosts could be reaching many viewers previously outside its 1.0 footprint, irrespective of whether it successfully provides service to 95 percent of that original area. How should we weigh such tradeoffs when reviewing non-expedited applications seeking to rely on this method of reducing service loss? We seek comment on the appropriate scope of this flexibility.

21. While we consider each of the specific licensing proposals above, in this section, we seek comment on potential policy-related issues stemming from the increased flexibility that we propose in this proceeding. While our proposals for licensing simulcast multicast streams and non-simulcast 1.0 multicast streams would allow Next Gen TV stations to license multicast programming streams on one or more hosts in their local markets, we seek comment on whether this flexibility should be circumscribed. Specifically, we seek comment on how we can ensure that individual stations do not use this transition period flexibility to aggregate programming or broadcast spectrum on multiple stations in a market in a manner that would not otherwise be possible or permitted absent the proposed rule changes. We also seek comment on whether to extend the waiver of the ownership rules, which currently applies only to primary stream hosting partnerships, to multicast stream hosting partnerships.

22. Programming Aggregation. As ATVA points out, permitting the types of licensing arrangements set forth in NAB's petition could have the unintended consequence of permitting Next Gen TV stations to aggregate broadcast programming in a way they may not do today. We seek comment on these concerns, and whether our final rules should be tailored to address them while allowing broadcasters to “continue to serve audiences with multicast streams.” For instance, ATVA contends that NAB's proposal would “provide yet another loophole permitting [a station] to assemble `big four' duopolies, triopolies, and even quadropolies without triggering ownership rules and without needing to seek FCC approval.” Under our current ownership rules, an entity may only own two full power stations in a market, only one of which may be a “top-four” station. As described in the 2018 Quadrennial Review proceeding, however, broadcasters sometimes aggregate multiple top-four network affiliations in a market on a single station by placing newly acquired affiliated programming on one or more multicast streams. These licensees are not currently required to seek Commission approval to do so and are able to maintain compliance with the Local TV Ownership Rule, which limits ownership of multiple stations in a single market, rather than multiple streams of programming in a market. Recognizing this trend, as well as commenters' concerns about its increasing prevalence as a means to work around the letter and spirit of the Local TV Ownership Rule, the Commission has sought comment on the practice of dual affiliation using multicasting and “whether and how the Commission should evaluate multicast streams for purposes of the Local Television Ownership Rule.” The proposals at issue in this FNPRM appear to be primarily motivated by a desire to adopt new technologies in a rapidly changing video programming market, and any rules adopted would be temporary. Nonetheless, we recognize that they could contribute to or even exacerbate the trend discussed above. Would it be appropriate to restrict these program aggregation practices for Next Gen TV stations relying on partner hosts during the 3.0 transition regardless of how we address the application of the TV duopoly rule in the context of the Quadrennial Review proceeding?

23. ATVA notes that the proposal in this proceeding would open the door to broadcasters' airing newly acquired programming not just on their own multicast streams carried on their own channels—the issue directly raised in the 2018 Quadrennial Review proceeding—but on their own multicast streams carried by host stations as well. Such a scenario would potentially expand what ATVA characterizes as an existing “loophole” in the Local TV Rule. Should the Commission be concerned about allowing such flexibility, and if so are there ways that the approach contemplated in this FNPRM could be modified to avoid expanding this “loophole” while at the same time giving broadcasters sufficient flexibility to “preserve existing multicast service to viewers” during the transition from 1.0 to 3.0? For instance, to what extent are efforts to address the issues raised by ATVA more properly addressed in another proceeding, such as the 2018 Quadrennial Review proceeding where, as noted above, the Commission has sought comment on issues related to multicasting? In what ways are the issues ATVA raises here different than the issues raised in the 2018 Quadrennial Review proceeding? We seek comment on whether, and if so how, these concerns should be addressed in the context of this proceeding. Should we condition the grant of a multicast license on the outcome of the 2018 Quadrennial Review proceeding?

24. In response to ATVA's concerns, NAB offers a proposal for “limiting the potential scope of hosting arrangements.” Specifically, NAB proposes that: “In arranging for the hosting of its programming, no individual broadcaster shall partner with other stations to host, in the aggregate, more programming than such station could broadcast on its own facilities based on the then-current state of the art for television broadcasting as evidenced by other television stations then operating with the same standard.” We believe that an effective rule addressing ATVA's concerns would need to be objective, simple for stakeholders to understand and apply, and amenable to enforcement. While we question whether NAB's proposal meets these standards, we seek comment on NAB's proposed approach. For example, what is meant by “the then-current state of the art”? How would such a standard work? Who would decide what is the “state of the art”? How would an interested party and/or the Commission determine whether a given broadcaster is in compliance with this rule? We seek comment on NAB's proposal, including suggestions regarding how NAB's terminology in the proposal could or should be construed, or ways in which it could be made workable or enforceable in practice. The record contains no alternative proposals that might address these concerns, beyond the cable commenters' suggestion that we consider a flat prohibition on the licensing of hosted non-simulcast streams. We therefore seek comment on potential alternatives to NAB's proposal that might better address concerns related to the aggregation of programming, should we adopt our licensing proposals.

25. Either in addition to or in lieu of action in the 2018 Quadrennial Review or another proceeding, should the Commission limit the number of programming streams generally—or non-simulcast programming streams in particular—that an originating station can air on host stations as commenters suggest? Alternatively, should the Commission limit the number of hosts that any one broadcaster can use to air primary and multicast streams? If so, would limiting the number of hosts to two give broadcasters sufficient flexibility to serve their existing viewers during the transition, while also limiting their ability to aggregate programming or broadcast spectrum on multiple stations in a manner that would not otherwise be possible or permitted absent the proposed rule changes? If the Commission does adopt final multicast licensing rules that circumscribe the approach NAB originally sought, should the Commission also establish a waiver process pursuant to which parties could seek additional flexibility by demonstrating that it is consistent with the goals of this proceeding?

26. Spectrum Aggregation. We also seek comment on how to ensure that a Next Gen TV broadcaster does not use the interim flexibility proposed in this FNPRM to aggregate spectrum beyond that which is legally permissible today. A single station may generally use no more than 6 MHz under its license (and stations channel sharing due to successful participation in the reverse auction use less). As discussed above, today one entity can effectively control no more than two full power stations in a market. 33 In addition to its concerns about aggregation of programming, ATVA expresses concern that the proposal in NAB's Petition could result in a Next Gen TV station being authorized to operate on three or more different channels, potentially using “many times its assigned” amount of spectrum to air more programming than it otherwise could. The group asserts that this would reduce viewpoint diversity by encouraging stations to lease spectrum in order to host other stations' streams, rather than providing programming of their own. While calling the idea “wholly speculative and extraordinarily unlikely in practice,” NAB suggests that its proposal to limit the scope of hosting arrangements (described above) would address this concern. Should the Commission be concerned about the impact of the proposals above on spectrum aggregation in a market and in particular the ramifications for viewpoint diversity, competition, or localism? If so, we anticipate that any rule the Commission adopts to address this situation will also address any concerns about programming aggregation. That is, we expect that, to the extent we must address both of these potential scenarios, they can be addressed by the same rule. We seek comment on these assumptions. If we were to adopt such a rule, would NAB's proposed rule be effective for this purpose?  34 We also invite comment on other ways in which we could ensure that a station does not aggregate spectrum beyond that which it is allowed pursuant to a single license and that a broadcaster does not aggregate control of spectrum in a market beyond that which it is allowed under the Local Television Ownership Rule.

27. Ownership Rules Exemption. On a related issue, we seek comment on whether to extend the temporary “waiver” of the Commission's local broadcast ownership rules, which currently applies to primary stream hosting partnerships, to multicast stream hosting partnerships. That is, if we adopt the approach contemplated in this FNPRM or another proposal that would grant similar flexibility, should we also grant temporary relief from our broadcast ownership rules broadly to stations involved in multicast hosting relationships in order to provide clarity for such stations and other stakeholders, or would it be sufficient for us to limit any relief granted to those portions of our ownership rules that define attributable relationships? In the 2017 Next Gen TV First Report and Order, we found that, “[g]iven that the local simulcasting requirement . . . is temporary, [the Commission] will not apply the broadcast ownership rules in any situation where airing an ATSC 3.0 signal or an ATSC 1.0 simulcast on a temporary host station's facility would result in a potential violation of those rules.” In adopting this exemption, the Commission emphasized its temporary nature and that it was granted to facilitate the transition to ATSC 3.0. In addition, that previously adopted exemption is tied to a requirement to simulcast programming aired by the originating station itself, limiting the scope of the exemption and potential effects on the competitive dynamics of the marketplace. By contrast, the licensed multicast stream hosting rules proposed today would permit a Next Gen TV broadcaster to air programming on another station without airing a simulcast of that programming on its own station, or even having previously aired that network or stream of programming. Is this a significant enough difference to warrant a different approach? Or do the temporary nature of the exemption and the desire to facilitate the 3.0 transition make the situations similar enough to warrant the same approach? We seek comment on the similarities of and differences between these situations, and whether a temporary exemption from the media ownership rules in whole or in part is appropriate in the multicast licensing context.

28. Instead of broadly exempting licensed multicast streams from the Commission's ownership rules, should we alternatively find in this proceeding that the hosting of a Next Gen TV station's multicast stream standing alone—either simulcast or non-simulcast—simply does not give rise to an attributable interest in the host for the originating station and vice versa? Should we likewise find that the hosted multicast stream is considered part of the originating station for purposes of our ownership rules such that any action taken in the 2018 Quadrennial Review proceeding that impacts a station's use of its own multicast streams would also apply to multicast streams that the station arranges to air on a host station? We seek comment on these issues.

29. Finally, we seek comment on the practical impacts if we adopt the proposals in sections III.A, B, and D of this proceeding but decline to extend to multicasting hosting relationships a temporary exemption from either the ownership rules broadly or, more narrowly, the associated portion of those rules that governs attribution. To what extent, if any, would the absence of an exemption from the ownership rules or the associated attribution rules for multicast hosting arrangements inhibit broadcasters from providing multicast programming during the transition? If an exemption from the ownership rules or the associated attribution rules or both is not extended to multicast hosting relationships, how would, or how should, these relationships be considered or counted for purposes of applying our ownership and attribution rules, including the prohibition on ownership of two top-four rated stations in a market?

30. Finally, we tentatively conclude that we should apply certain ATSC 3.0 transition rules that currently apply only to primary simulcast streams to both simulcast and non-simulcast licensed multicast streams aired on host stations, as NAB has proposed, 35 with certain exceptions as detailed below. In particular, we propose an exception to the predicted population threshold required for expedited processing of the licensing applications as it relates to multicast license applications but keep the requirement in place for determining an originating station's compliance with our children's television Core Programming requirements. We propose to revise our rules and Form 2100, which is used by stations seeking to implement or modify sharing arrangements, accordingly. We also note that, as NAB recognizes in its proposal, nothing we do in proposing multicast licensing rules would change the carriage rights of multicast streams, which are not entitled to mandatory carriage by MVPDs. 36 We seek comment on these proposals.

31. Generally, the ATSC 3.0 transition rules that currently apply only to primary simulcast streams are intended to protect consumers from losing access to the 1.0 television programming they currently watch and avoiding consumer disruption during the transition to ATSC 3.0. Our intention is therefore to ensure that primary and multicast streams licensed to be aired by a partner host station are treated the same, to the greatest extent possible. While multicast programming typically has much lower viewership than primary streams, such viewership is not insignificant and is important to those viewers watching it today. 37 Moreover, multicast streams add to the diversity of programming available to viewers in the market. We recognize, however, that no broadcaster is required to provide multicast streams and that Next Gen TV stations are not required to preserve or simulcast their existing multicast streams when they transition to ATSC 3.0 service. 38 Thus, we must balance the goal of preserving maximum availability of multicast streams with the reality that broadcasters could simply decline to air multicast streams if our rules are too burdensome. We seek comment on how to balance these goals in adopting licensing rules.

32. Coverage rules. We propose to apply the DMA and community of license coverage requirements to all multicast streams that are licensed to be aired on a host station that is not the primary host. 39 We tentatively conclude that a station seeking to license multicast streams aired on a host station will continue to qualify for expedited processing if its primary stream aired on a partner 1.0 host can provide coverage to 95 percent of the predicted population served by the applicant's pre-transition 1.0 signal. Even if its licensed multicast streams will be aired by a different a host station, they will not be required to meet this predicted population threshold requirement to qualify for expedited processing, as long as they comply with the DMA and community of license coverage requirements. However, we also propose that a Next Gen TV broadcaster should note in its application the predicted percentage of population within the noise-limited service contour (NLSC) served by the station's original 1.0 signal that will be served by each multicast stream host in order to provide transparency to the public and interested parties. Finally, we propose that in order for such a multicast stream to count toward the originating station's children's television Core Programming requirement, the multicast stream must either be carried on the same host as the originating station's primary stream, or on a host that serves at least 95 percent of the predicted population served by the applicant's pre-transition 1.0 signal.

33. Given that one of the primary goals of granting licensing flexibility is to preserve 1.0 multicast service, we tentatively conclude that we must preserve such service for the station's DMA and community of license when a Commission license is being issued. We note that this is more restrictive than NAB's proposed rule, which would require only that a multicast host be in the same DMA as the originating station. We seek comment on this tentative conclusion, including whether some other minimum coverage or other standard would be more appropriate. We tentatively agree with NAB, however, that we should not otherwise require a multicast stream to cover a specific amount of the originating station's 1.0 NLSC in order for a license application to receive favorable treatment and expedited processing. 40 We seek comment on whether this approach will provide broadcasters with enough flexibility to find hosts for their multicast streams, while still ensuring that the preservation of 1.0 service is focused on the stations' communities of license. We also seek comment, however, on whether this approach would adequately conform to the expectations of viewers outside a station's community of license.

34. We further tentatively conclude that, to be counted toward Core Programming for purposes of our children's television rules, programming on a multicast stream must either be carried on the same host as the originating station's primary stream, or on a host that serves at least 95 percent of the predicted population served by the applicant's pre-transition 1.0 signal. 41 We observe that if we allow multicast streams to serve substantially fewer viewers than the primary stream, it would seem to be inappropriate to allow a station to rely on such multicast streams to comply with its Core Programming requirements. 42 As in the expedited processing context, we believe this 95 percent threshold will balance the need to ensure the continued provision of service to viewers against the need to allow broadcasters sufficient flexibility to locate and select a simulcast partner. Application of this threshold is intended to preserve the maximum amount of ATSC 1.0 programming to the greatest number of viewers while facilitating the deployment of ATSC 3.0 and new innovative broadcast services. We seek comment on these tentative conclusions and on whether this approach will preserve existing viewership while providing broadcasters a reasonable amount of flexibility during the transition. Alternatively, we seek comment on any alternative minimum coverage requirement or other standard to achieve the stated goals.

35. Licensing. We propose to apply our licensing process for primary simulcast streams to guest multicast streams aired on a host station. 43 Thus, an originating station's multicast streams aired as guest streams on a host will be licensed as additional temporary channels of the originating broadcaster. That is, each of the originating station's guest multicast streams aired on a host would be considered an additional, separate channel under the originating station's single, unified license. 44 We seek comment on this proposal.

36. Form 2100. We propose to modify our Next Gen TV license application form (FCC Form 2100) to accommodate multicast licensing and any other changes adopted in the final order to this proceeding. We seek comment on what information we should collect in this regard, including what information we could collect to provide more transparency about Next Gen TV broadcasters' hosting arrangements. For example, based on our proposals above, we might collect the following information for each programming stream (primary and multicast) that the applicant would license on a host station: (1) Each guest stream's channel number (RF and virtual) as aired on the host ( i.e., channel 10.2, 10.3 etc.); (2) resolution ( i.e., HD or SD); (3) network programming affiliation (if any); and (4) whether the stream will be simulcast. If we adopt any limits on spectrum or programming aggregation, we also seek comment on what information we would require in order to implement such limits. We might also, for example, collect the following information in order to identify each partner host station used by the applicant: (1) Host's call sign and facility identification number; (2) host's DMA; and (3) the predicted percentage of population within the noise limited service contour served by the station's original ATSC 1.0 signal that will be served by the host, including identifying areas of service loss by providing a contour overlap map. We seek comment on whether the information discussed in this paragraph would be useful to the Commission and the public as well as the burden on broadcasters if required to provide this information. We seek comment on whether additional information not discussed in this paragraph should be collected. To avoid administratively expensive and time-consuming changes to the form for a temporary licensing process, and expedite the availability of the revised form, we propose to collect much of this information through one or more required exhibits. We seek comment on this proposed approach. Finally, we seek comment on how to make this information accessible to the public and interested parties. 45

37. Timing. As set forth above, we tentatively conclude that any rules adopted pursuant to this FNPRM should apply until and unless the Commission eliminates the mandatory local simulcasting requirement. 46 As we have made clear, and again emphasize, these arrangements are intended to be temporary, but continue to be necessary, given the standard is not backward-compatible with existing TV sets or receivers. 47 We find it to be most sensible to apply these rules for the same duration as the ATSC 3.0 rules applicable to primary streams because they are intended to achieve the same purposes, which are to preserve existing 1.0 viewership while giving broadcasters the flexibility to transition 3.0. We seek comment on this tentative conclusion. We also seek particular comment on whether to sunset the “substantially similar” requirement for simulcast multicast streams on the same schedule as the primary stream simulcast requirement, currently scheduled to sunset on July 17, 2023. 48

38. Alternative or additional proposals. Finally, we seek comment on any other ways not previously considered in which modification of our rules would not only help facilitate the 3.0 transition but also preserve existing ATSC 1.0 service to viewers.

39. Digital Equity and Inclusion. Finally, the Commission, as part of its continuing effort to advance digital equity for all, 49 including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations  50 and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

40. Initial RFA Analysis. As required by the Regulatory Flexibility Act of 1980 (RFA), 51 the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA). The IRFA is below.

41. Initial Paperwork Reduction Act Analysis. 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 (PRA). 52 Public and agency comments are due February 11, 2022. 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, 53 the Commission will seek specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

42. Comments should be sent to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 60-day Review—Open for Public Comments” or by using the search function. Your comment must be submitted into www.reginfo.gov per the above instructions for it to be considered. In addition to submitting in www.reginfo.gov also send a copy of your comment on the proposed information collection to Cathy Williams, FCC, via email to PRA@fcc.gov and to Cathy.Williams@fcc.gov. Include in the comments the OMB control number.

43. To view or obtain a copy of this information collection request (ICR) submitted to OMB: (1) Go to this OMB/GSA web page: http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, and (6) when the list of FCC ICRs currently under review appears, look for the OMB control number of this ICR as shown in the Supplementary Information section below (or its title if there is no OMB control number) and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed.

44. OMB Control Number: 3060-1254.

Title: Next Gen TV/ATSC 3.0 Local Simulcasting Rules; 47 CFR 73.3801 (full-power TV), 73.6029 (Class A TV), and 74.782 (low-power TV) and FCC Form 2100 (Next Gen TV License Application).

Form No.: FCC Form 2100 (Next Gen TV License Application).

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities; not-for-profit institutions; and/or state, local or tribal governments.

Number of Respondents: 1,222 respondents 11,260 responses.

Estimated Time per Response: 0.017 hours to 8 hours.

Frequency of Response: On occasion reporting requirement; Recordkeeping Requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this collection of information is contained in Sections 1, 4, 7, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403, 614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 157, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403, 534, and 535.

Total Annual Burden: 3,752 hours.

Total Annual Costs: $147,000.

Needs and Uses: The FNPRM proposes changes to its Next Gen TV rules to allow Next Gen TV broadcasters to include within their license certain of their non-primary video programming streams (multicast streams) that are aired in a different service on “host” stations during a transitional period, using the same licensing framework, and to a large extent the same regulatory regime, established for the simulcast of primary video programming streams on “host” station facilities.