Table of Contents I. Introduction A. Authority B. Rulemaking Process C. Deviation From Appendix A II. Background A. Current Standards B. Current Process III. Summary of the Analyses Performed by DOE A. Market and Technology Assessment B. Screening Analysis C. Engineering Analysis D. Markups Analysis E. Energy and Water Use Analysis F. Life-Cycle Cost and Payback Period Analyses G. National Impact Analysis IV. Public Participation A. Participation in the Webinar B. Procedure for Submitting Prepared General Statements for Distribution C. Conduct of the Webinar D. Submission of Comments V. Approval of the Office of the Secretary I. Introduction A. Authority

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 EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include dishwashers, the subject of this document. (42 U.S.C. 6292(a)(6))

EPCA prescribed energy conservation standards for these products (42 U.S.C. 6295(g)(1) and 10(A)), and directs DOE to conduct future rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(g)(4)) EPCA further provides that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking (“NOPR”) including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) Not later than three years after issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B))

Under EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))

DOE is publishing this Preliminary Analysis to collect data and information to inform its decision consistent with its obligations under EPCA.

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including dishwashers. As noted, EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy efficiency (or water efficiency for certain products specified by EPCA) that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy, or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3))

To adopt any new or amended standards for a covered product, DOE must determine that such action would result in significant energy savings. (42 U.S.C. 6295(o)(3)(B)) The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 3 For example, the United States rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing greenhouse gas (“GHG”) emissions in order to limit the rise in mean global temperature. As such, energy savings that reduce GHG emission have taken on greater importance. Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with relatively constant demand. In evaluating the significance of energy savings, DOE considers differences in primary energy and full-fuel-cycle (“FFC”) effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a more complete picture of the impacts of energy conservation standards.

Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis. DOE estimates a combined total of 0.68 quads of FFC energy savings at the max-tech efficiency levels for dishwashers. This represents 7.6 percent energy savings relative to the no-new-standards case energy consumption for dishwashers. DOE has initially determined the energy savings for the candidate standard levels considered in this preliminary analysis are “significant” within the meaning of 42 U.S.C. 6295(o)(3)(B).

To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

Further, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))

EPCA also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))

Additionally, EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. DOE must specify a different standard level for a type or class of product that has the same function or intended use, if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate. Id. Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))

Finally, pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures for dishwashers address standby mode and off mode energy use. In this document, DOE intends to incorporate such energy use into any amended energy conservation standards it adopts in the final rule.

Before proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE intends to use to evaluate standards for the product at issue and the results of preliminary analyses DOE performed for the product.

DOE is examining whether to amend the current standards pursuant to its obligations under EPCA. This notification announces the availability of the preliminary TSD, which details the preliminary analyses and summarizes the preliminary results of DOE's analyses. In addition, DOE is announcing a public webinar to solicit feedback from interested parties on its analytical framework, models, and preliminary results.

In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), DOE notes that it is deviating from the provision in appendix A regarding the pre-NOPR stages for an energy conservation standards rulemaking. Section 6(a)(2) of appendix A states that if the Department determines it is appropriate to proceed with a rulemaking, the preliminary stages of a rulemaking to issue or amend an energy conservation standard that DOE will undertake will be a framework document and preliminary analysis, or an advance notice of proposed rulemaking (“ANOPR”). DOE is opting to deviate from this step by publishing a preliminary analysis without a framework document. A framework document is intended to introduce and summarize generally the various analyses DOE conducts during the rulemaking process and requests initial feedback from interested parties. As discussed further in the following section, prior to this notification of the preliminary analysis, DOE issued an early assessment request for information (“RFI”) in which DOE discussed the most recent energy conservation standards rulemaking (81 FR 90072; December 13, 2016 (the “December 2016 Final Determination”)). 85 FR 64981 (Oct. 14, 2020) (the “October 2020 Early Assessment RFI”). In the October 2020 Early Assessment RFI, DOE also requested comment on whether there were changes to the technologies considered as part of the December 2016 Final Determination that would affect whether DOE could propose a “no-new standards determination” and on any aspect of its economic justification analysis. 85 FR 64981, 64983. DOE provided a 75-day comment period for the October 2020 Early Assessment RFI. 85 FR 64981. While DOE received comments on the assumptions employed in the analysis conducted in support of the December 2016 Final Determination ( see e.g., comment from the Association of Home Appliance Manufacturers, Docket EERE-2019-BT-STD-0039, No. 6 at pp. 8-9), DOE did not receive comments or data suggesting DOE rely on a different analytical framework to that conducted for the December 2016 Final Determination. As DOE is intending to rely on substantively the same analytical methods as in the most recent rulemaking, publication of a framework document would not introduce an analytical framework different from that on which comment was requested in the early assessment RFI and on which comment was received. As such, DOE is not publishing a framework document.

Section 6(d)(2) of appendix A specifies that the length of the public comment period for pre-NOPR rulemaking documents will vary depending upon the circumstances of the particular rulemaking, but will not be less than 75 calendar days. For this preliminary analysis, DOE has opted to instead provide a 60-day comment period. As stated, DOE requested comment in the October 2020 Early Assessment RFI on the analysis conducted in support of the December 2016 Final Determination and provided stakeholders a 75-day comment period. For this preliminary analysis, DOE has relied on substantively the same analytical framework as used in the previous rulemaking. As stated, DOE did not receive comments in response to the October 2020 Early Assessment RFI suggesting a change to DOE's approach. Given that DOE is relying on substantively the same analytical approach as conducted for the December 2016 Final Determination, DOE has determined that a 60-day comment period in conjunction with the prior 75-day comment period provides sufficient time for interested parties to review the tentative methodologies and the preliminary analysis, and develop comments.

In a direct final rule published on May 30, 2012 (“May 2012 Direct Final Rule”), DOE prescribed the current energy conservation standards for dishwashers manufactured on and after May 30, 2013. 77 FR 31918. In the December 2016 Final Determination, DOE concluded that amended energy conservation standards would not be economically justified at any level above the standards established in the May 2012 Direct Final Rule, and therefore determined not to amend the standards. 81 FR 90072. The current energy and water conservation standards are located in 10 CFR part 430, § 430.32(f), and are repeated in Table II.1. The currently applicable DOE test procedure for dishwashers appears at 10 CFR part 430 subpart B, appendix C1 (“Appendix C1”).

On October 30, 2020, DOE published a final rule establishing a separate product class for standard-size dishwashers with a cycle time for the “normal” cycle of less than one hour ( i.e., 60 minutes) from washing through drying. 85 FR 68723. Subsequently, on August 11, 2021, DOE published a NOPR proposing to revoke the final rule that established the new product class for dishwashers. 86 FR 43970. On January 11, 2022, DOE issued a final rule revoking the final rule that established a new product class for dishwashers. 4 Accordingly, DOE addressed only the two current product classes for dishwashers as part of the present evaluation.

In the October 2020 Early Assessment RFI, DOE stated that it was initiating an early assessment review to determine whether any new or amended standards would satisfy the relevant requirements of EPCA for a new or amended energy conservation standard for dishwashers. 85 FR 64981. Specifically, DOE sought data and information that could enable the agency to determine whether DOE should propose a “no new standard” determination because a more stringent standard: (1) Would not result in a significant savings of energy; (2) is not technologically feasible; (3) is not economically justified; or (4) any combination of foregoing. Id.

Comments received to date as part of the current process have helped DOE identify and resolve issues related to the preliminary analyses. Chapter 2 of the preliminary TSD summarizes and addresses the comments received.

For the products covered in this preliminary analysis, DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) markups to determine product price; (3) energy use; (4) life-cycle cost (“LCC”) and payback period (“PBP”); and (5) national impacts. The preliminary TSD that presents the methodology and results of each of these analyses is available at www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=38&action=viewlive.

DOE also conducted, and has included in the preliminary TSD, several other analyses that support the major analyses or are preliminary analyses that will be expanded if DOE determines that a NOPR is warranted to propose amended energy conservation standards. These analyses include: (1) The market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the LCC and PBP analysis and the national impact analysis (“NIA”). In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and has identified the methods to be used for the consumer subgroup analysis, the emissions analysis, the employment impact analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the NOPR should one be issued.

DOE develops information in the market and technology assessment that provides an overall picture of the market for the products concerned, including general characteristics of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment include: (1) A determination of the scope of the rulemaking and product classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends, and (6) technologies or design options that could improve the energy efficiency of the product.

See chapter 3 of the preliminary TSD for further discussion of the market and technology assessment.

DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:

(1) Technological feasibility. Technologies that are not incorporated in commercial products or in working prototypes will not be considered further.

(2) Practicability to manufacture, install, and service. If it is determined that mass production and reliable installation and servicing of a technology in commercial products could not be achieved on the scale necessary to serve the relevant market at the time of the projected compliance date of the standard, then that technology will not be considered further.

(3) Impacts on product utility or product availability. If it is determined that a technology would have a significant adverse impact on the utility of the product for significant subgroups of consumers or would result in the unavailability of any covered product type with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as products generally available in the United States at the time, it will not be considered further.

(4) Adverse impacts on health or safety. If it is determined that a technology would have significant adverse impacts on health or safety, it will not be considered further.

(5) Unique-pathway proprietary technologies. If a design option utilizes proprietary technology that represents a unique pathway to achieving a given efficiency level, that technology will not be considered further due to the potential for monopolistic concerns. 10 CFR part 430, subpart C, appendix A, 6(b)(3) and 7(b).

If DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis.

See chapter 4 of the preliminary TSD for further discussion of the screening analysis.

The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of dishwashers. There are two elements to consider in the engineering analysis; the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency products, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each product class, DOE estimates the manufacturer production cost (“MPC”) for the baseline as well as higher efficiency levels. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the LCC and PBP analyses and the NIA).

DOE converts the MPC to the manufacturer selling price (“MSP”) by applying a manufacturer markup. The MSP is the price the manufacturer charges its first customer, when selling into the dishwasher distribution channels. The manufacturer markup accounts for manufacturer non-production costs and profit margin. DOE developed the manufacturer markup by examining publicly available financial information for manufacturers of the covered product.

See chapter 5 of the preliminary TSD for additional detail on the engineering analysis and chapter 12 of the preliminary TSD for additional detail on the manufacturer markup.

The markups analysis develops appropriate markups ( e.g., retailer markups, distributor markups, contractor markups) in the distribution chain and sales taxes to convert MSP estimates derived in the engineering analysis to consumer prices, which are then used in the LCC and PBP analysis. At each step in the distribution channel, companies mark up the price of the product to cover business costs and profit margin.

DOE developed baseline and incremental markups for each actor in the distribution chain. Baseline markups are applied to the price of products with baseline efficiency, while incremental markups are applied to the difference in price between baseline and higher-efficiency models (the incremental cost increase). The incremental markup is typically less than the baseline markup and is designed to maintain similar per-unit operating profit before and after new or amended standards. 5

Chapter 6 of the preliminary TSD provides details on DOE's development of markups for dishwashers.

The purpose of the energy and water use analysis is to determine the annual energy consumption of dishwashers at different efficiencies in representative U.S. single-family homes, multi-family residences, and mobile homes, and to assess the energy and water savings potential of increased dishwasher efficiency. The energy and water use analysis estimates the range of energy and water use of dishwashers in the field ( i.e., as they are actually used by consumers). The energy and water use analysis provides the basis for other analyses DOE performed, particularly assessments of the energy savings and the savings in consumer operating costs that could result from adoption of amended or new standards.

Chapter 7 of the preliminary TSD addresses the energy and water use analysis.

The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:

• The LCC is the total consumer expense of an appliance or product over the life of that product, consisting of total installed cost (MSP, distribution chain markups, sales tax, and installation costs) plus operating costs (expenses for energy and water use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.

• The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that the amended or new standards are assumed to take effect.

Chapter 8 of the preliminary TSD addresses the LCC and PBP analyses.

The NIA estimates the national energy savings (“NES”) and the net present value (“NPV”) of total consumer costs and savings expected to result from dishwasher standards at specific efficiency levels (referred to as candidate standard levels). 6 DOE calculates the NES and NPV for the potential standard levels considered based on projections of annual product shipments, along with the annual energy consumption and total installed cost data from the energy use and LCC analyses. For the present analysis, DOE projected the energy savings, operating cost savings, product costs, and NPV of consumer benefits over the lifetime of dishwashers sold from 2027 through 2056.

DOE evaluates the impacts of new or amended standards by comparing a case without such standards (“no-new-standards case”) with standards-case projections. The no-new-standards case characterizes energy and water use and consumer costs for each product class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each dishwasher product class if DOE adopted new or amended standards at specific efficiency levels for that class. For each efficiency level, DOE considers how a given standard would likely affect the market shares of dishwashers with efficiencies greater than the standard.

DOE uses a spreadsheet model to calculate the energy savings and the national consumer costs and savings from each efficiency level. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet. The NIA spreadsheet model uses typical values (as opposed to probability distributions) as inputs. Critical inputs to this analysis include shipments projections, estimated product lifetimes, product installed costs and operating costs, product annual energy and water consumption, the no-new-standards case and standards case efficiency projections, and discount rates.

DOE estimates a combined total of 0.4 quads of site energy savings at the max-tech efficiency levels for dishwashers. Combined site energy savings at Efficiency Level 1 for both product classes are estimated to be 0.003 quads.

Chapter 10 of the preliminary TSD addresses the NIA.

DOE invites public participation in this process through participation in the webinar and submission of written comments and information. After the webinar and the closing of the comment period, DOE will consider all timely-submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses. Following such consideration, the Department will publish either a determination that the standards for dishwashers need not be amended or a NOPR proposing to amend those standards. The NOPR, should one be issued, would include proposed energy conservation standards for the products covered by that rulemaking, and members of the public would be given an opportunity to submit written and oral comments on the proposed standards.

The time and date for the webinar meeting are listed in the DATES section at the beginning of this document. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website: www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=38&action=viewlive. Participants are responsible for ensuring their systems are compatible with the webinar software.

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

Persons requesting to speak should briefly describe the nature of their interest in this document and provide a telephone number for contact. DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.

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

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

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

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

DOE will accept comments, data, and information regarding this preliminary analysis no later than the date provided in the DATES section at the beginning of this notification of a webinar and availability of preliminary technical support document. Interested parties may submit comments 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 Office 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. If this instruction is followed, 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 faxes will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, 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 to Dishwashers2019STD0039@ee.doe.gov 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 notification of a webinar and availability of preliminary technical support document.

This document of the Department of Energy was signed on January 16, 2022, by Kelly J. 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 .

This RFI requests information and data regarding whether an amended test procedure would more accurately and fully comply with the requirement that the test procedure produce results that measure energy use during a representative average use cycle for the equipment, and not be unduly burdensome to conduct. To inform interested parties and to facilitate this process, DOE has identified several issues associated with the currently applicable test procedures on which DOE is interested in receiving comment.

Pumps are included in the list of “covered equipment” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6311(1)(A)) Dedicated-purpose pool pumps (“DPPPs”), which are the subject of this document, are a subset of pumps; thus DOE is authorized to establish test procedures and energy conservation standards for them. Relevant to this document, DOE has established test procedures for DPPPs at 10 CFR 431.464(b) and appendices B and C to subpart Y of part 431 (“Appendix B” and “Appendix C”, respectively). The following sections discuss DOE's authority to establish and amend test procedures for DPPPs, as well as relevant background information regarding DOE's consideration of test procedures for this equipment.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of several consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C  2 of EPCA, added by Public Law 95-619, Title IV, section 441(a) (42 U.S.C. 6311-6317 as codified), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. “Pumps” are listed as a type of industrial equipment covered by EPCA, although EPCA does not define the term “pump.” (42 U.S.C. 6311(1)(A)) DOE defines “pump” as equipment designed to move liquids (which may include entrained gases, free solids, and totally dissolved solids) by physical or mechanical action, includes a bare pump, and, if included by the manufacturer at the time of sale, mechanical equipment, driver, and controls. 10 CFR 431.462. Dedicated-purpose pool pumps, which are the subject of this RFI, meet this definition of a pump and are covered under the pump equipment type.

The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a)); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6316(b)(2)(D))

The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s))

Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use or estimated annual operating cost of a given type of covered equipment during a representative average use cycle and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))

EPCA also requires that, at least once every 7 years, DOE review test procedures for all types of covered equipment, including DPPPs, to determine whether amended test procedures would more accurately or fully comply with the requirements that the test procedures be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle and to not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(1) In addition, if the Secretary determines that a test procedure amendment is warranted, the Secretary must publish proposed test procedures in the Federal Register , and afford interested persons an opportunity (of not less than 45 days' duration) to present oral and written data, views, and arguments on the proposed test procedures. (42 U.S.C. 6314(b)) If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this RFI to collect data and information to inform its decision in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6314(a)(1))

DOE's test procedure for determining DPPP energy efficiency was established in a final rule published on August 7, 2017. 82 FR 36858 (“August 2017 Final Rule”). The August 2017 Final Rule established a definition for the term “dedicated-purpose pool pump” and described several categories of DPPPs. The DPPP test procedure currently incorporates by reference the Hydraulic Institute (“HI”) Standard 40.6-2014, “Methods for Rotodynamic Pump Efficiency Testing” (“HI 40.6-2014”), along with several modifications to that testing method related to measuring the hydraulic power, the true power factor, and the maximum head. 82 FR 36858, 36861. The definitions, DPPP test procedure, sampling provisions, enforcement requirements, and labeling requirements contained in the August 2017 DPPP TP Final Rule reflect the recommendations of the DPPP Working Group contained in both the December 2015 and June 2016 DPPP Working Group Recommendations (82 FR 36858, 36860).

DOE has identified specific issues on which it seeks input to aid in its analysis of whether an amended test procedure for dedicated-purpose pool pumps would more accurately or fully comply with the requirement that the test procedure produces results that measure energy use during a representative average use cycle for the product, and not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))

In addition, DOE notes that since publication of the August 2017 Final Rule, as well as the energy conservation standards direct final rule, 3 it has received inquiries from stakeholders related to implementation of and compliance with the regulatory requirements for DPPPs. This RFI discusses these issues and identifies additional information that would be needed if DOE decided to propose amending its current test procedure.

Additionally, DOE welcomes comments on any aspect of the existing test procedures for DPPPs and on other relevant issues that may not be specifically identified in this document.

DPPPs are a category of pumps, and the term “dedicated-purpose pool pump” comprises self-priming pool filter pumps, non-self-priming pool filter pumps, waterfall pumps, pressure cleaner booster pumps, integral sand-filter pool pumps, integral-cartridge filter pool pumps, storable electric spa pumps, and rigid electric spa pumps. 10 CFR 431.462.

DOE also defines a number of the terms used in the DPPP definition:

Integral cartridge-filter pool pump means a pump that requires a removable cartridge filter, installed on the suction side of the pump, for operation; and the cartridge filter cannot be bypassed.

Integral sand-filter pool pump means a pump distributed in commerce with a sand filter that cannot be bypassed.

Non-self-priming pool filter pump means a pool filter pump that is not certified under NSF/ANSI 50-2015 (incorporated by reference, see § 431.463) to be self-priming and is not capable of re-priming to a vertical lift of at least 5.0 feet with a true priming time less than or equal to 10.0 minutes, when tested in accordance with section F of appendix B or C of this subpart, and is not a waterfall pump.

Pool filter pump means an end suction pump that:

(1) Either: (i) Includes an integrated basket strainer; or (ii) Does not include an integrated basket strainer, but requires a basket strainer for operation, as stated in manufacturer literature provided with the pump; and

(2) May be distributed in commerce connected to, or packaged with, a sand filter, removable cartridge filter, or other filtration accessory, so long as the filtration accessory are connected with consumer-removable connections that allow the filtration accessory to be bypassed.

Pool pump timer means a pool pump control that automatically turns off a dedicated-purpose pool pump after a run-time of no longer than 10 hours.

Pressure cleaner booster pump means an end suction, dry rotor pump designed and marketed for pressure-side pool cleaner applications, and which may be UL listed under ANSI/UL 1081-2016 (incorporated by reference, see § 431.463).

Rigid electric spa pump means an end suction pump that does not contain an integrated basket strainer or require a basket strainer for operation as stated in manufacturer literature provided with the pump and that meets the following three criteria:

(1) Is assembled with four through bolts that hold the motor rear endplate, rear bearing, rotor, front bearing, front endplate, and the bare pump together as an integral unit;

(2) Is constructed with buttress threads at the inlet and discharge of the bare pump; and

(3) Uses a casing or volute and connections constructed of a non-metallic material.

Self-priming pool filter pump means a pool filter pump that is certified under NSF/ANSI 50-2015 (incorporated by reference, see § 431.463) to be self-priming or is capable of re-priming to a vertical lift of at least 5.0 feet with a true priming time less than or equal to 10.0 minutes, when tested in accordance with section F of appendix B or C of the DPPP test procedure, and is not a waterfall pump.

Storable electric spa pump means a pump that is distributed in commerce with one or more of the following:

(1) An integral heater; and

(2) An integral air pump.

Submersible pump means a pump that is designed to be operated with the motor and bare pump fully submerged in the pumped liquid.

Waterfall pump means a pool filter pump with a certified maximum head less than or equal to 30.0 feet, and a maximum speed less than or equal to 1,800 rpm.

Issue 1: DOE requests comment on the definitions of DPPPs and DPPP varieties and whether any of the terms should be amended, and if so, how the terms should be amended. In particular, DOE requests comment on whether the terms are sufficient to identify which equipment is subject to the test procedure and whether any test procedure amendments are required to ensure that all such equipment can be appropriately tested in accordance with the test procedure.

The definitions of integral cartridge-filter pool pumps and integral sand-filter pool pumps depend on the defined term “integral” and on the term “bypassed.” The definitions of these pump varieties do not explicitly provide whether removing the filtration media constitutes bypassing the filter.

Issue 2: DOE requests comment on whether it should define the term “bypass,” whether it should provide additional detail for the definition of the term “integral,” or whether the existing definitions are sufficient to determine the classification of individual DPPPs. If additional detail is necessary for either of these terms, please specify what detail should be provided to determine the classification of such DPPPs.

The energy conservation standards for integral cartridge-filter pool pumps and integral sand-filter pool pumps at 10 CFR 431.465 require that each pump that is manufactured starting on July 19, 2021 must be distributed in commerce with a pool pump timer that is either integral to the pump or a separate component shipped with the pump. 10 CFR 431.465(g) As described, the term “pool pump timer” is defined as a pool pump control that automatically turns off a DPPP after a run-time of no longer than 10 hours. The definition of pool pump timer does not describe whether the timer may be user-adjustable ( e.g., to accommodate time periods other than 10 hours) or, if the timer is user-adjustable, whether it must be supplied with a preset operating time of 10 hours.

Issue 3: DOE requests comment on whether it should provide additional detail in the definitions of pool pump timers and integral filter housings regarding the requirements of the pool pump timer, or whether the existing definitions are sufficient to determine the compliance status of individual DPPPs. If additional detail is warranted, please specify what detail should be added.

The current Federal test procedures at 10 CFR 431.464(b) apply to self-priming and non-self-priming pool filter pumps with hydraulic output power less than 2.5 horsepower, waterfall pumps, and pressure cleaner booster pumps. 10 CFR 431.464(b)(1)(i). Additionally, submersible pumps are not covered by the test procedure. 10 CFR 431.464(b)(1)(iii)(A).

The ASRAC DPPP Working Group focused on self-priming and non-self-priming pool filter pumps with hydraulic output power less than 2.5 horsepower, which are typically installed in residential applications. (Docket No. EERE-2015-BT-0008, No. 82, pp. 1-2). Very large pool filter pumps, with hydraulic output of 2.5 horsepower or more, are more commonly installed in commercial applications, where the head and flow characteristics are significantly different from residential installations. Because of these differences, a test procedure for very large pool filter pumps would require unique load points. The ASRAC DPPP Working Group also noted a lack of performance data for these very large pool filter pumps, which prevented the group from negotiating standards for these pumps, and therefore they did not recommend a test procedure either. (Docket No. EERE-2015-BT-STD-0008, No. 53 at pp. 197-198; Docket No. EERE-2015-BT-STD-0008, No. 79 at pp. 33-34, pp. 41-42, pp. 44-48, pp. 50-53) For these reasons, DOE did not adopt a test procedure or standards for pool filter pumps with hydraulic output power greater than or equal to 2.5 horsepower.

Following adoption of the test procedure and energy conservation standards for DPPPs, manufacturers identified several models of DPPPs that are designed and marketed for commercial applications but do in fact have hydraulic output power less than 2.5 horsepower. The Office of the General Counsel has issued an enforcement policy statement regarding these DPPPs. 4 The policy states that DOE will not enforce the testing, labeling, certification, and standards compliance requirements for DPPPs meeting all of the following three criteria:

(1) The orifice on the pump body that accepts suction side plumbing connections has an inner diameter of greater than 2.85 inches; and

(2) The pump has a measured performance of ≥200 gallons per minute (gpm) at 50 feet of head as determined in accordance with appendix B or C (as applicable) to subpart Y of part 431, section I.A.1 (When determining overall efficiency, best efficiency point, or other applicable pump energy performance information, section 40.6.5.5.1, “Test procedure”; section 40.6.6.2, “Pump efficiency”; and section 40.6.6.3, “Performance curve” must be used, as applicable); and

(3) The pump is marketed exclusively for commercial applications.

As explained in the enforcement policy statement, these pumps were not considered during the ASRAC negotiations, but were not explicitly exempted in the regulatory text.

Issue 4: DOE requests comment on whether it should expand the scope of the DPPP test procedure to include pumps designed for commercial applications, including those subject to the enforcement policy and/or pool filter pumps with hydraulic output power greater than or equal to 2.5 horsepower. If so, DOE seeks information on which test points and system curves would be appropriate to measure performance of these DPPPs.

DOE specifies the weighted energy factor (“WEF”) as the test metric for self-priming pool filter pumps, non-self-priming pool filter pumps, waterfall pumps, and pressure cleaner booster pumps. 10 CFR 431.464(b). Generally, the WEF metric is a ratio of the measured water flow to the driver power input to the tested pump. For single-speed DPPPs, the WEF metric represents pump performance at a single test point. For two-speed and multiple-speed DPPPs, the WEF metric represents a weighted average of pump performance at two test points. Section I.D.3 of appendix B and appendix C to subpart Y of part 431.

DOE's established practice is to adopt industry standards as DOE test procedures unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA) or estimated operating costs of that product during a representative average use cycle. 10 CFR 431.4; 10 CFR part 430 subpart C appendix A section 8(c). In cases where the industry testing standard does not meet the EPCA statutory criteria for test procedures, DOE will make any necessary modifications to these testing standards through the rulemaking process when adopting them for inclusion into DOE's regulations.

DOE's test procedure for pumps incorporates by reference HI 40.6-2014, Methods for Rotodynamic Pump Efficiency Testing, (“HI 40.6-2014”), with exceptions, specified at 10 CFR 431.463. HI 40.6-2014 defines and explains how to calculate driver power input, volume per unit time, pump total head, pump power output, overall efficiency, and other relevant quantities necessary to determine the weighted energy factor (“WEF”). HI 40.6-2014 specifies the test setup, methodology, standard rating conditions, and tolerances of test equipment. Subsequent to the development of the August 2017 Final Rule, 5 the Hydraulic Institute (HI) updated HI 40.6-2014 with the publication of HI Standard 40.6-2016, “Methods for Rotodynamic Pump Efficiency Testing” (“HI 40.6-2016”). This update aligned the definitions and procedures described in HI Standard 40.6 with the DOE test procedure for commercial and industrial pumps, which published on January 25, 2016 (81 FR 4086). However, the DOE test procedure for commercial and industrial pumps explicitly excludes DPPPs from scope. 6 Nonetheless, DOE has reviewed the relevant sections of HI 40.6-2016 and determined that HI 40.6-2016 produces test results that reflect the energy efficiency, energy use, or estimated operating costs of a dedicated-purpose pool pump during a representative average use cycle of DPPPs.

Additionally, HI has recently published another updated version of HI 40.6, “Methods for Rotodynamic Pump Efficiency Testing” (“HI 40.6-2021”). This version primarily updates the HI standard reference for nomenclature and definitions  7 and includes a new appendix for the testing of circulator pumps. In response to a request for information on commercial and industrial pumps, 8 stakeholders generally supported DOE's incorporation by reference of HI 40.6-2021 for that test procedure (Docket No. EERE-2020-BT-TP-0032: Grundfos Americas Corporation, No. 7, p. 2; Northwest Energy Efficiency Alliance, No. 8, p. 6; HI, No. 6, p. 1), with HI stating that it would not impact measured values, burden, or representativeness. (Docket No. EERE-2020-BT-TP-0032: HI, No. 6 at p. 3) DOE has reviewed relevant sections of HI 40.6-2021 and has determined that updates to the latest version of HI 40.6 will neither affect testing nor result in different test outcomes for DPPPs.

Issue 5: DOE requests comments on the updated standard HI 40.6-2021 and on whether DOE should incorporate HI 40.6-2021 by reference as the DOE test procedure for DPPPs. Specifically, DOE requests information on whether the updates in HI 40.6-2021 (and HI 40.6-2016) impact the measured values for DPPPs, and if so, to what extent. DOE also requests information on the impact of the updates in HI 40.6-2021 (and HI 40.6-2016) to the test burden and the representativeness of the test results for DPPPs.

DOE's test procedure for DPPPs references specific sections of NSF International (“NSF”)/American National Standards Institute (“ANSI”) Standard 50-2015 “Equipment for Swimming Pools, Spas, Hot Tubs and Other Recreational Water Facilities” (“NSF/ANSI 50-2015”). The DOE test procedure for DPPPs references Annex C, “Normative test methods for the evaluation of centrifugal pumps,” Section C.3, “Self-priming capability,” of NSF/ANSI 50-2015. These provisions pertain to the classifications and testing of self-priming and non-self-priming pool filter pumps. Section F of appendix B to subpart Y of part 431.

Since publication of the August 2017 Final Rule, NSF updated NSF/ANSI 50-2015 with the publication of NSF/ANSI/CAN Standard 50-2019 “Equipment And Chemicals For Swimming Pools, Spas, Hot Tubs, And Other Recreational Water Facilities” (“NSF/ANSI/CAN 50-2019”). This update changed section numbering and references but does not affect the test methods related to self-priming and non-self-priming pool filter pumps.

Issue 6: DOE requests comments on the updated standard NSF/ANSI/CAN 50-2019 and on whether DOE should reference NSF/ANSI/CAN 50-2019 sections N3-3 (which is the same as section C3 of NSF/ANSI 50-2015) as the DOE test procedure for determining the self-priming capabilities of DPPPs. DOE also requests information on the impact of the updates in NSF/ANSI/CAN 50-2019 to the test burden and the representativeness of the test results.

DOE invites all interested parties to submit in writing by the date specified in the DATES section, comments and information on matters addressed in this RFI.

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 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. Following this instruction, 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 on 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. Faxes will not 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, written in English and 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. According 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).

DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on January 12, 2022, by Kelly J. 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 .

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 C  2 of EPCA (42 U.S.C. 6311-6317, as codified), added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. “Pumps” are listed as a type of industrial equipment covered by EPCA, although EPCA does not define the term “pump.” (42 U.S.C. 6311(1)(A)) DOE defines “pump” as equipment designed to move liquids (which may include entrained gases, free solids, and totally dissolved solids) by physical or mechanical action and includes a bare pump and, if included by the manufacturer at the time of sale, mechanical equipment, driver, and controls. 10 CFR 431.462. Dedicated-purpose pool pumps, which are the subject of this RFI, meet this definition of a pump and are covered under the pump equipment type.

The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and 42 U.S.C 6316(b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6316(a) (applying the preemption waiver provisions of 42 U.S.C. 6297))

EPCA also requires that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE evaluate the energy conservation standards for each type of covered equipment, including those at issue here, and publish either a notification of determination that the standards do not need to be amended, or a NOPR that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)) If DOE determines not to amend a standard based on the statutory criteria, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(2))

In proposing new standards, DOE must evaluate that proposal against the criteria of 42 U.S.C. 6295(o), as described in the following section, and follow the rulemaking procedures set out in 42 U.S.C. 6295(p). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(B)) If DOE decides to amend the standard based on the statutory criteria, DOE must publish a final rule not later than two years after energy conservation standards are proposed. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(3)(A))

On January 18, 2017, DOE published a direct final rule (“January 2017 Direct Final Rule”)  3 to codify energy conservation standards for DPPPs manufactured or imported to the United States. 82 FR 5650. The energy conservation standards are consistent with the recommendations of the Appliance Standards Rulemaking Federal Advisory Committee (“ASRAC”) negotiated rulemaking working group for dedicated-purpose pool pumps (82 FR 5650, 5658). (Docket No. EERE-2015-BT-STD-0008, Nos. 51 and 82) The current energy conservation standards are located in title 10 of the Code of Federal Regulations (“CFR”) part 431, section 465(f)-(h). DOE established performance-based standards, expressed in terms of weighted energy factor (“WEF”), for certain DPPP classes. 10 CFR 431.465(f). For certain classes of DPPPs, including those classes subject to the performance standards, DOE established a design requirement. 10 CFR 431.465(g) and (h). Compliance with the standards established for DPPPs is required on and after July 19, 2021. The currently applicable DOE test procedures for DPPPs appear at 10 CFR part 431, subpart Y, appendices B and C (“Appendices B and C”).

DOE is publishing this RFI to collect data and information to inform this rulemaking consistent with its obligations under EPCA.

DOE must follow specific statutory criteria for prescribing new or amended standards for covered equipment. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(A)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy or is not technologically feasible or economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(3))

To adopt any new or amended standards for a covered product, DOE must determine that such action would result in significant energy savings. (42 U.S.C. 6295(o)(3)(B))

The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 4 For example, the United States has now rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing GHG emissions in order to limit the rise in mean global temperature. As such, energy savings that reduce GHG emission have taken on greater importance. Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with relatively constant demand. In evaluating the significance of energy savings, DOE considers differences in primary energy and FFC effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a more complete picture of the impacts of energy conservation standards.

Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis.

To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

(1) The economic impact of the standard on the manufacturers and consumers of the affected products;

(2) The savings in operating costs throughout the estimated average life of the product compared to any increases in the initial cost, or maintenance expenses likely to result from the standard;

(3) The total projected amount of energy and water (if applicable) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the equipment likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary considers relevant.

(42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in the development of the technical analyses on which DOE will ultimately rely to determine whether (and if so, how) to amend the standards for DPPPs.

In accordance with Section 3(a) of 10 CFR part 430, subpart C, appendix A, DOE notes that it is deviating from that appendix's provision requiring a 75 day comment period for all pre-NOPR standards documents. 10 CFR part 430, subpart C, appendix A, section 6(d)(2). DOE is opting to deviate from this step because DOE believes that 30 days is a sufficient time to respond to this initial rulemaking document given stakeholder engagement and participation in prior rulemaking activities regarding dedicated-purpose pool pumps.

In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether amended standards for DPPPs.

This RFI covers those products that meet the definitions of DPPPs, as codified at 10 CFR 431.462. The definitions for DPPPs were established by a test procedure final rule published on August 7, 2017. 82 FR 36858.

Issue 1: DOE requests comment on whether the definitions for DPPPs require any revisions—and if so, how those definitions should be revised. DOE also requests feedback on whether the sub-category definitions currently in place are appropriate or whether further modifications are needed. If these sub-category definitions need modifying, DOE seeks specific input on how to define these terms and why such modifications are needed.

Issue 2: DOE requests comment on whether additional equipment definitions are necessary to close any potential gaps in coverage between equipment varieties. DOE also seeks input on whether such equipment currently exist in the market or whether they are being planned for introduction.

The market and technology assessment that DOE routinely conducts when analyzing the impacts of a potential new or amended energy conservation standard provides information about the DPPP industry that will be used in DOE's analysis throughout the rulemaking process. DOE uses qualitative and quantitative information to characterize the structure of the industry and market. DOE identifies manufacturers, estimates market shares and trends, addresses regulatory and non-regulatory initiatives intended to improve energy efficiency or reduce energy consumption, and explores the potential for efficiency improvements in the design and manufacturing of DPPPs. DOE also reviews equipment literature, industry publications, and company websites. Additionally, DOE considers conducting interviews with manufacturers to improve its assessment of the market and available technologies for DPPPs.

When evaluating and establishing energy conservation standards, DOE may divide covered equipment into equipment classes by the type of energy used, or by capacity or other performance-related features that justify a different standard. (42 U.S.C. 6316(a); 42 U.S.C. 6295(q)(1)) In determining whether capacity or another performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE deems appropriate. ( Id. )

For DPPPs, the current energy conservation standards specified in 10 CFR 431.465 are based on the following performance-related features: Strainer or filtration accessory, self-priming ability, pump capacity, and rotational speed. Table II.1 lists the seven current equipment classes for DPPPs.

Issue 3: DOE requests feedback on the current DPPP equipment classes and whether changes to these individual equipment classes and their descriptions should be made or if novel equipment can be classified as multiple different units.

The DPPPs ASRAC Working Group limited its scope to self-priming and non-self-priming pool filter pumps with hydraulic output power less than 2.5 horsepower, as those pumps are typically installed in residential applications (Docket No. EERE-2015-BT-0008, No. 82, pp. 1-2). Very large pool filter pumps, with hydraulic output of 2.5 horsepower or more, are more commonly installed in commercial applications, where the head and flow characteristics are significantly different from residential installations. The ASRAC DPPP Working Group also noted a lack of performance data for these very large pool filter pumps, which prevented the group from negotiating standards for these pumps. (Docket No. EERE-2015-BT-STD-0008, No. 53 at pp. 197-198; Docket No. EERE-2015-BT-STD-0008, No. 79 at pp. 33-34, pp. 41-42, pp. 44-48, pp. 50-53).

Following adoption of the test procedure and energy conservation standards for DPPPs, manufacturers identified several models of DPPPs that are designed and marketed for commercial applications, but do in fact have hydraulic output power less than 2.5 horsepower. The Office of the General Counsel has issued an enforcement policy statement regarding these DPPPs. 5 The policy states that DOE will not enforce the testing, labeling, certification, and standards compliance requirements for DPPPs meeting all of the following three criteria:

(1) The orifice on the pump body that accepts suction side plumbing connections has an inner diameter of greater than 2.85 inches; and

(2) The pump has a measured performance of ≥200 gallons per minute (gpm) at 50 feet of head as determined in accordance with appendices B or C (as applicable) to subpart Y of part 431, section I.A.1 (When determining overall efficiency, best efficiency point, or other applicable pump energy performance information, section 40.6.5.5.1, “Test procedure”; section 40.6.6.2, “Pump efficiency”; and section 40.6.6.3, “Performance curve” must be used, as applicable); and

(3) The pump is marketed exclusively for commercial applications.

As explained in the enforcement policy statement, these pumps were not considered during the ASRAC negotiations, but were not explicitly exempted in the regulatory text.

Issue 4: DOE seeks information regarding any other new equipment classes it should consider for inclusion in its analysis. Specifically, DOE requests information on performance-related features that provide unique consumer utility and data detailing the corresponding impacts on energy use that would justify separate equipment classes ( i.e., explanation for why the presence of these performance-related features would increase energy consumption).

In analyzing the feasibility of potential new or amended energy conservation standards, DOE uses information about existing and past technology options and prototype designs to help identify technologies that manufacturers could use to meet and/or exceed a given set of energy conservation standards under consideration. In consultation with interested parties, DOE intends to develop a list of technologies to consider in its analysis. That analysis will likely include a number of the technology options DOE previously considered during its most recent rulemaking for DPPPs. A complete list of those prior options appears in Table II.2. See also 82 FR 5650, 5676-5679.

Issue 5: DOE seeks information on the technology options listed in Table II.2 regarding their applicability to the current market and how these technologies may impact the efficiency of DPPPs as measured according to the DOE test procedure. DOE also seeks information on how these technologies may have changed since their prior consideration during the January 2017 Direct Final Rule analysis. Specifically, DOE seeks information on the range of efficiencies or performance characteristics that are currently available for each technology option.

Issue 6: DOE seeks comment on other technology options that it should consider for inclusion in its analysis and details regarding the extent to which these technologies may impact equipment features or consumer utility. DOE also seeks input regarding the cost-effectiveness of implementing these options.

Issue 7: DOE seeks comment on other technology options that it should consider for inclusion in its analysis and if these technologies may impact product features or consumer utility.

The purpose of the screening analysis is to evaluate the technologies that improve equipment efficiency to determine which technologies will be eliminated from further consideration and which will be passed to the engineering analysis for further consideration.

DOE determines whether to eliminate certain technology options from further consideration based on the following criteria:

(1) Technological feasibility. Technologies that are not incorporated in commercial equipment or in working prototypes will not be considered further.

(2) Practicability to manufacture, install, and service. If it is determined that mass production of a technology in commercial equipment and reliable installation and servicing of the technology could not be achieved on the scale necessary to serve the relevant market at the time of the compliance date of the standard, then that technology will not be considered further.

(3) Impacts on equipment utility or equipment availability. If a technology is determined to have significant adverse impact on the utility of the equipment to significant subgroups of consumers, or result in the unavailability of any covered equipment type with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as equipment generally available in the United States at the time, it will not be considered further.

(4) Adverse impacts on health or safety. If it is determined that a technology will have significant adverse impacts on health or safety, it will not be considered further.

(5) Unique-Pathway Proprietary Technologies. If a design option utilizes proprietary technology that represents a unique pathway to achieving a given efficiency level, that technology will not be considered further due to the potential for monopolistic concerns. 10 CFR 431.4; 10 CFR part 430, subpart C, appendix A, sections 6(b)(3) and 7(b).

Technology options identified in the technology assessment are evaluated against these criteria using DOE analyses and inputs from interested parties ( e.g., manufacturers, trade organizations, and energy efficiency advocates). Technologies that pass through the screening analysis are referred to as “design options” in the engineering analysis. Technology options that fail to meet one or more of the five criteria are eliminated from consideration.

None of the technology options listed in Table II.2 were screened out in the January 2017 Direct Final Rule.

Issue 8: DOE requests feedback on what impact, if any, the five screening criteria described in this section would have on each of the technology options listed in Table II.2 and Table II.3 of this RFI with respect to DPPPs. Similarly, DOE seeks information regarding how these same criteria would affect any other technology options not already identified in this document with respect to their potential use in DPPPs.

The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of DPPPs. There are two elements to consider in the engineering analysis; the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency equipment, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each equipment class, DOE estimates the baseline cost, as well as the incremental cost for the product/equipment at efficiency levels above the baseline. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the life-cycle cost (“LCC”) and payback period (“PBP”) analyses and the NIA).

DOE typically uses one of two approaches to develop energy efficiency levels for the engineering analysis: (1) Relying on observed efficiency levels in the market ( i.e., the efficiency-level approach), or (2) determining the incremental efficiency improvements associated with incorporating specific design options to a baseline model ( i.e., the design-option approach). Using the efficiency-level approach, the efficiency levels established for the analysis are determined based on the market distribution of existing products (in other words, based on the range of efficiencies and efficiency level “clusters” that already exist on the market). Using the design option approach, the efficiency levels established for the analysis are determined through detailed engineering calculations and/or computer simulations of the efficiency improvements from implementing specific design options that have been identified in the technology assessment. DOE may also rely on a combination of these two approaches. For example, the efficiency-level approach (based on actual products on the market) may be extended using the design option approach to interpolate to define “gap fill” levels (to bridge large gaps between other identified efficiency levels) and/or to extrapolate to the max-tech level (particularly in cases where the max-tech level exceeds the maximum efficiency level currently available on the market).

For each established equipment class, DOE selects a baseline model as a reference point against which any changes resulting from new or amended energy conservation standards can be measured. The baseline model in each equipment class represents the characteristics of common or typical equipment in that class. Typically, a baseline model is one that meets the current minimum energy conservation standards and provides basic consumer utility. Consistent with this analytical approach, DOE tentatively plans to consider the current minimum energy conservation standards (which went into effect July 19, 2021) to establish baseline efficiency levels for each equipment class group. The current standards for each equipment class are found at 10 CFR 431.465(f)-(h).

Issue 9: DOE requests feedback (including data) on whether the current established energy conservation standards for DPPPs appropriate baseline efficiency levels for DOE are to apply to each equipment class group in evaluating whether to amend the current energy conservation standards for these equipment classes.

Issue 10: DOE requests feedback on the appropriate baseline efficiency levels for any equipment classes that are not currently in place, such as pool filter pumps with hydraulic horsepower greater than or equal to 2.5 horsepower, or DPPPs subject to the enforcement policy.

As part of DOE's analysis, the maximum available efficiency level is the most efficient unit currently available on the market. For the January 2017 Direct Final Rule, DOE did not directly analyze every available DPPP capacity. Rather, DOE selected and analyzed certain representative capacities from each equipment class and based its overall analysis for each equipment class on those representative units. The representative units from each equipment class were determined based on horsepower ratings, in addition to corresponding shipment volumes, examination of manufacturers' catalog data, and soliciting feedback from interested parties.

DOE defines a max-tech efficiency level to represent the theoretical maximum possible efficiency if all available design options are incorporated in a model. In applying these design options, DOE would only include those that are compatible with each other that when combined, would represent the theoretical maximum possible efficiency. In many cases, the max-tech efficiency level is not commercially available because it is not economically feasible. In the January 2017 Direct Final Rule, DOE determined max-tech efficiency levels using energy modeling as well as input from interested parties during negotiation. These energy models were based on using various technology options (as discussed in section II.B.2 of this RFI) applicable to specific equipment classes. While all these equipment configurations had not likely been tested as prototypes, all the individual design options had been incorporated in available equipment, and therefore a compatible combination of the design options used for max-tech is theoretically possible. The max-tech efficiency levels analyzed in the January 2017 Direct Final Rule are included in Table II.3.

Issue 11: DOE seeks input on whether it is appropriate to use the same representative units for the purpose of the engineering analysis.

Issue 12: DOE seeks input on whether the max-tech efficiency levels presented in Table II.3 are appropriate and technologically feasible for potential consideration as possible energy conservation standards—and if not, why not. DOE also requests feedback on whether the max-tech efficiencies presented in Table II.3 of this RFI are representative of other pump capacities not directly analyzed in the January 2017 Direct Final Rule. If the range of possible efficiencies is different for the other pump capacities not analyzes, what alternative approaches should DOE consider using for those pump capacities and why?

Issue 13: DOE seeks feedback on what design options would be incorporated for each equipment class at a max-tech efficiency level, and the efficiencies associated with those levels.

Issue 14: DOE requests feedback on the appropriate max-tech efficiency levels for any equipment classes that are not currently in place, such as pool filter pumps with hydraulic horsepower greater than or equal to 2.5 horsepower, or DPPPs subject to the enforcement policy.

The cost analysis portion of the engineering analysis is conducted using one or a combination of cost approaches. The selection of cost approach depends on a suite of factors, including availability and reliability of public information, characteristics of the regulated product, and the availability and timeliness of purchasing the equipment on the market. The cost approaches are summarized as follows:

• Physical teardowns: Under this approach, DOE physically dismantles a commercially available product, component-by-component, to develop a detailed bill of materials for the product.

• Catalog teardowns: In lieu of physically deconstructing a product, DOE identifies each component using parts diagrams (available from manufacturer websites or appliance repair websites, for example) to develop the bill of materials for the product.

• Price surveys: If neither a physical nor catalog teardown is feasible (for example, for tightly integrated products such as fluorescent lamps, which are infeasible to disassemble and for which parts diagrams are unavailable) or cost-prohibitive and otherwise impractical ( e.g., large commercial boilers), DOE conducts price surveys using publicly available pricing data published on major online retailer websites and/or by soliciting prices from distributors and other commercial channels.

The bill of materials provides the basis for the manufacturer production cost (“MPC”) estimates. DOE then applies a manufacturer markup to convert the MPC to manufacturer selling price (“MSP”). The manufacturer markup accounts for costs such as overhead and profit. The resulting bill of materials provides the basis for the manufacturer production cost (“MPC”) estimates.

As described at the beginning of this section, the main outputs of the engineering analysis are cost-efficiency relationships that describe the estimated increases in manufacturer production cost associated with higher-efficiency equipment for the analyzed equipment classes. For the January 2017 Direct Final Rule, DOE developed the cost-efficiency relationships by estimating the efficiency improvements and costs associated with incorporating specific design options into the assumed baseline model for each analyzed equipment class.

Issue 15: DOE requests feedback on whether manufacturers would incorporate the technology options listed in Table II.2 of this RFI to increase energy efficiency of DPPPs beyond the baseline, and if so, how. This includes information on the order in which manufacturers would incorporate the different technologies to incrementally improve the efficiencies of equipment. DOE also requests feedback on whether the increased energy efficiency of DPPPs would lead to other design changes that would not occur otherwise, and if so, what those changes would be. DOE is also interested in information regarding any potential impact of adopting a given design option on a manufacturer's ability to incorporate additional functions or attributes in response to consumer demand.

Issue 16: DOE also seeks input on the increase in MPC associated with incorporating each design option. Specifically, DOE is interested in whether and how the costs estimated for design options in the January 2017 Direct Final Rule have changed since the time of that analysis. DOE also requests information on the investments needed to incorporate specific design options, including, but not limited to, costs related to new or modified tooling (if any), materials, engineering and development efforts to implement each design option, and manufacturing/production impacts.

Issue 17: DOE requests comment on whether certain design options may not be applicable to (or incompatible with) specific equipment classes.

To account for manufacturers' non-production costs and profit margin, DOE applies a non-production cost multiplier (the manufacturer markup) to the MPC. The resulting manufacturer selling price (“MSP”) is the price at which the manufacturer distributes a unit into commerce. For the 2017 Direct Final Rule, DOE used a manufacturer markup of 1.46 for self-priming pool filter pumps and waterfall pumps, 1.35 for non-self-priming pool filter pumps and pressure cleaner booster pool pumps, and 1.27 for integral cartridge-filter pool pumps and integral sand-filter pool pumps. DOE developed these estimated markups based on corporate reports and conversations with manufacturers and experts. See chapter 6 of the January 2017 Direct Final Rule TSD for further detail.

Issue 18: DOE requests feedback on whether the manufacturer markups used in the January 2017 Direct Final Rule are still appropriate for DOE to use when evaluating whether to amend its current standards. If the markups require revision, what specific revisions are needed for each? Are there additional markups that DOE should also consider—if so, which ones and why?

DOE derives customer prices based on manufacturer markups, retailer markups, distributor markups, contractor markups (where appropriate), and sales taxes. In deriving these markups, DOE determines the major distribution channels for product sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline products (“baseline markups”) and higher-efficiency products (“incremental markups”). The identified distribution channels ( i.e., how the products are distributed from the manufacturer to the consumer), and estimated relative sales volumes through each channel are used in generating end-user price inputs for the LCC analysis and national impact analysis (“NIA”). In the January 2017 Direct Final Rule, DOE accounted for three distribution channels for dedicated-purpose pool pumps: Two for replacements of pool pumps for an existing swimming pool and one for installations of a pool pump in a new swimming pool. DOE also estimated the fraction of pool pumps distributed through each channel:

In addition, in DOE's analysis in the January 2017 Direct Final Rule, in some cases only the motor component is replaced rather than the entire pool pump. Therefore, DOE also considered distribution channels to account for how motors are distributed in the motor replacement market:

Issue 19: DOE requests information on the existence of any distribution channels other than the channels that were identified in the January 2017 Direct Final Rule and as described in section E. DOE also requests data on the fraction of sales that go through these channels and any other identified channels.

As part of the rulemaking process, DOE conducts an energy use analysis to identify how equipment is used by consumers, and thereby determine the energy savings potential of energy efficiency improvements. The energy use analysis is meant to represent the energy consumption of a given product or equipment when used in the field.

In the January 2017 Direct Final Rule, DOE determined the annual energy consumption of DPPPs by multiplying the average daily unit energy consumption (“UEC”) by the annual days of operation. For single-speed pool pumps, the daily UEC is the pool pump power multiplied by the daily operating hours. For two-speed and variable-speed pool pumps, the daily UEC is the sum of low-speed mode power, multiplied by daily low-speed operating hours, and the high-speed mode power, multiplied by the daily high-speed operating hours. 82 FR 5650, 5697. DOE's determination of power inputs, operating hours, and annual days of operation are described in detail in the January 2017 Direct Final Rule. 82 FR 5650, 5697-5700.

Issue 20: DOE requests information on whether any of the data or assumptions used to estimate average annual energy use for DPPPs need to be updated, and if so why and how.

Issue 21: DOE requests comment on the energy use patterns of pool filter pumps with hydraulic horsepower greater than or equal to 2.5 horsepower, or DPPPs subject to the enforcement policy, including (1) power inputs, (2) operating hours, and (3) annual days of operation.

DOE conducts the LCC and PBP analysis to evaluate the economic effects of potential energy conservation standards for DPPPs on individual customers. For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimated baseline level. The LCC is the total customer expense over the life of the equipment, consisting of purchase, installation, and operating costs (expenses for energy use, maintenance, and repair). Inputs to the calculation of total installed cost include the cost of the equipment—which includes MSPs, distribution channel markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs, equipment lifetimes, discount rates, and the year that compliance with new and amended standards is required.

In the January 2017 Direct Final Rule, DOE only accounted for the difference in installation cost by efficiency level. Specifically, for two-speed pumps, DOE included the cost of a timer control and its installation where applicable. For two-speed and variable-speed pumps, DOE included supplemental installation labor costs. 82 FR 5650, 5701. DOE also assumed that for maintenance cost, there is no change with efficiency level, so DOE did not include those costs in the model. 82 FR 5650, 5702. Finally, for repair costs, DOE accounted for the cost of a motor replacement. DOE estimated that such replacement occurs at the halfway point in a pump's lifetime, but only for those dedicated-purpose pool pumps whose lifetime exceeds the average lifetime for the relevant equipment class. The cost of the motor was determined through the engineering and markups analysis. DOE used 2015 RS Means to estimate labor costs for pump motor replacement. Id.

Issue 22: DOE requests feedback and data on its assumptions regarding installation and maintenance costs described in section G as well as for any technology options listed in Table II.2 of this RFI.

Issue 23: To the extent that these costs differ by efficiency level, DOE seeks supporting data and the reasons for those differences.

Issue 24: DOE requests information and data on the frequency of repair and repair costs by equipment class for motor replacement or for any of the technology options listed in Table II.2 of this RFI.

In the January 2017 Direct Final Rule, DOE developed a survival function, which provides a distribution of lifetime ranging from a minimum of 2 or 3 years based on warranty covered period, to a maximum of 15 years, with a mean value of 7 years for self-priming and waterfall pumps, 5 years for non-self-priming and pressure cleaner booster pumps, and 4 years for integral pumps. These values are applicable to pumps in residential applications. For commercial applications, DOE scaled the lifetime to acknowledge the higher operating hours compared to residential applications, resulting in a reduced average lifetime. 82 FR 5650, 5702.

Issue 25: DOE requests comment on whether the lifetime values continue to be appropriate for pool pumps currently subject to standards, and if not, how they should be changed.

Issue 26: DOE requests information on the lifetime of pool filter pumps with hydraulic horsepower greater than or equal to 2.5 horsepower and DPPPs subject to the enforcement policy.

DOE develops shipments projections of DPPPs to calculate the national impacts of potential amended energy conservation standards on energy consumption, net present value (“NPV”), and future manufacturer cash flows. In the January 2017 Final Rule, DOE estimated shipments in 2015 using data collected from manufacturer interview. DOE projected shipments using growth rates obtained from manufacturer interviews, a consulting report, and several macroeconomic indicators. 82 FR 5650, 5703.

Issue 27: DOE requests 2020 annual sales data ( i.e., number of shipments) for dedicated-purpose pool pumps and corresponding equipment classes (including those for pool filter pumps with hydraulic horsepower greater than or equal to 2.5 horsepower and DPPPs subject to the enforcement policy). For each class, DOE also requests the fraction of sales by class that are ENERGY STAR-qualified, as well as the fraction of sales by class that are single-speed, two-speed, or multi- and variable-speed.

Issue 28: If available, DOE requests the same information for the previous five years (2015-2019).

The purpose of the manufacturer impact analysis (“MIA”) is to estimate the financial impact of amended energy conservation standards on manufacturers of DPPPs, and to evaluate the potential impact of such standards on direct employment and manufacturing capacity. The MIA includes both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (“GRIM”), an industry cash-flow model adapted for each equipment in this analysis, with the key output of industry net present value (“INPV”). The qualitative part of the MIA addresses the potential impacts of energy conservation standards on manufacturing capacity and industry competition, as well as factors such as equipment characteristics, impacts on particular subgroups of firms, and important market and equipment trends.

As part of the MIA, DOE intends to analyze impacts of amended energy conservation standards on subgroups of manufacturers of covered equipment, including small business manufacturers. DOE uses the Small Business Administration's (“SBA”) small business size standards to determine whether manufacturers qualify as small businesses, which are listed by the applicable North American Industry Classification System (“NAICS”) code. 6 Manufacturing of DPPPs is classified under NAICS code 333914, “Measuring, Dispensing, and Other Pumping Equipment Manufacturing,” and the SBA sets a threshold of 750 employees or less for a domestic entity to be considered as a small business. This employee threshold includes all employees in a business' parent company and any other subsidiaries.

One aspect of assessing manufacturer burden involves examining the cumulative impact of multiple DOE standards and the equipment-specific regulatory actions of other Federal agencies that affect the manufacturers of a covered equipment. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon equipment lines or markets with lower expected future returns than competing equipment. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.

Issue 29: To the extent feasible, DOE seeks the names and contact information of any domestic or foreign-based manufacturers that distribute DPPPs in the United States.

Issue 30: DOE identified small businesses as a subgroup of manufacturers that could be disproportionally impacted by amended energy conservation standards. DOE requests the names and contact information of small business manufacturers, as defined by the SBA's size threshold, of DPPPs that manufacture equipment in the United States. In addition, DOE requests comment on any other manufacturer subgroups that could be disproportionally impacted by amended energy conservation standards. DOE requests feedback on any potential approaches that could be considered to address impacts on manufacturers, including small businesses.

Issue 31: DOE requests information regarding the cumulative regulatory burden impacts on manufacturers of DPPPs associated with (1) other DOE standards applying to different equipment that these manufacturers may also make and (2) equipment-specific regulatory actions of other Federal agencies. DOE also requests comment on its methodology for computing cumulative regulatory burden and whether there are any flexibilities it can consider that would reduce this burden while remaining consistent with the requirements of EPCA.

DOE invites all interested parties to submit in writing by the date specified in the DATES section of this document, comments and information on matters addressed in this document and on other matters relevant to DOE's consideration of amended energy conservations standards for DPPPs. After the close of the comment period, DOE will review the public comments received and may begin collecting data and conducting the analyses discussed in this document.

Submitting comments via www.regulations.gov. The www.regulations.gov web page requires you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies Office 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 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. If this instruction is followed, 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 on 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 faxes will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, or text (ASCII) file format. Provide documents that are not secured, written in English and 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).

DOE considers public participation to be a very important part of the process for developing energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process or would like to request a public meeting should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on January 12, 2022, by Kelly J. 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 .

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-1185; Project Identifier AD-2021-00339-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jeffrey Chang, Aviation Safety Engineer, Los Angeles ACO Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2002-03-01, Amendment 39-12642 (67 FR 6857, February 14, 2002) (AD 2002-03-01) for all Honeywell (formerly AlliedSignal, Inc. and Textron Lycoming) T5311A, T5311B, T5313B, T5317A, T5317B, and former military T53-L-11, T53-L-11A, T53-L-11B, T53-L-11C, T53-L-11D, T53-L-11A S/SA, T53-L-13B, T53-L-13B S/SA, T53-L-13B S/SB, and T53-L-703 model turboshaft engines. AD 2002-03-01 was prompted by reports of tachometer drive spur gear failure, resulting in potential engine overspeed, loss of power turbine speed (N2) instrument panel indication, and hard landings. AD 2002-03-01 requires initial and repetitive special vibration tests of the engine and, for engines that fail the special vibration tests, replacement of the gearbox assembly or engine before further flight. The agency issued AD 2002-03-01 to prevent excessive vibrations produced by the reduction gearbox assembly that could cause failure of the tachometer drive spur gear.

Since the FAA issued AD 2002-03-01, the FAA received reports that Honeywell T5317A-1 and T5317BCV model turboshaft engines are subject to the same unsafe condition identified in AD 2002-03-01, tachometer drive spur gear failures due to vibration loads. These model turboshaft engines were not included in the applicability of AD 2002-03-01. The FAA and Honeywell determined that the Honeywell T5317A-1 engine model was inadvertently left out of the applicability of AD 2002-03-01 and the Honeywell T5317BCV engine model was introduced into production after the publication of AD 2002-03-01.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed AlliedSignal Aerospace Service Bulletin (SB) T5311A/B-0100, dated January 20, 2000. This SB specifies procedures for performing a special vibration check on Honeywell T5311A and T5311B model turboshaft engines.

The FAA reviewed AlliedSignal Aerospace SB T5313B/17-0100, dated November 19, 1999. This SB specifies procedures for performing a special vibration check on Honeywell T5313B, T5317A, and T5317B model turboshaft engines.

The FAA reviewed Honeywell SB T53-0147, dated May 29, 2007. This SB specifies procedures for performing a special vibration check on Honeywell T5317A-1 model turboshaft engines.

The FAA reviewed Honeywell Maintenance Manual Temporary Revision (TR) No. 165, dated July 29, 2020. This TR specifies procedures for performing a special vibration check on Honeywell T5313B, T5317A, T5317A-1, T5317B, and T5317BCV model turboshaft engines.

The FAA reviewed AlliedSignal Aerospace SB T53-L-11-0100, Revision 2, dated January 20, 2000. This SB specifies procedures for performing a special vibration check on Honeywell T53-L-11, -11A, -11B, -11C, -11D, and -11A S/SA model turboshaft engines.

The FAA reviewed AlliedSignal Aerospace SB T53-L-13B-0100, Revision 2, dated May 11, 1999. This SB specifies procedures for performing a special vibration check on Honeywell T53-L-13B, -13B S/SA, and -13B S/SB model turboshaft engines.

The FAA reviewed AlliedSignal Aerospace SB T53-L-703-0100, Revision 2, dated May 11, 1999. This SB specifies procedures for performing a special vibration check on Honeywell T53-L-703 model turboshaft engines.

The Director of the Federal Register approved AlliedSignal Aerospace SB T5313B/17-0100, dated November 19, 1999; AlliedSignal Aerospace SB T53-L-13B-0100, Revision 2, dated May 11, 1999; AlliedSignal Aerospace SB T53-L-703-0100, Revision 2, dated May 11, 1999; AlliedSignal Aerospace SB T5311A/B-0100, dated January 20, 2000; and AlliedSignal Aerospace SB T53-L-11-0100, Revision 2, dated January 20, 2000, for incorporation by reference as of March 21, 2002 (67 FR 6857, February 14, 2002). This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA reviewed AlliedSignal Aerospace SB T5311/T53-L-11-0103, dated January 20, 2000. This SB specifies procedures for replacing the reduction gearbox assembly on Honeywell T5311A and T5311B model turboshaft engines and Honeywell T53-L-11, -11A, -11B, -11C, -11D, and -11A S/SA model turboshaft engines.

The FAA reviewed AlliedSignal Aerospace SB T5313B/17-0103, dated November 19, 1999. This SB specifies procedures for replacing the reduction gearbox assembly on Honeywell T5313B, T5317A, and T5317B model turboshaft engines.

The FAA reviewed AlliedSignal Aerospace SB T53-L-13B-0103, Revision 4, dated November 2, 1999. This SB specifies procedures for replacing the reduction gearbox assembly on Honeywell T53-L-13B, -13B S/SA, and -13B S/SB model turboshaft engines.

The FAA reviewed AlliedSignal Aerospace SB T53-L-703-0103, Revision 4, dated November 2, 1999. This SB specifies procedures for replacing the reduction gearbox assembly on Honeywell T53-L-703 model turboshaft engines.

This proposed AD would retain all of the requirements of AD 2002-03-01. This proposed AD would require initial and repetitive special vibration tests of the engine and, depending on the results, replacement of either the reduction gearbox assembly or the engine. This proposed AD would also expand the applicability to include Honeywell T5317A-1 and T5317BCV model turboshaft engines.

The FAA estimates that this AD, if adopted as proposed, would affect 150 engines installed on helicopters of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary replacement that would be required based on the results of the proposed special vibration test. The agency has no way of determining the number of aircraft that might need this replacement:

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

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

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

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

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

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

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

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

For purposes of this Request for Information (RFI), prior authorization generally refers to rules imposed by healthcare payers that require approval for a medication, procedure, device, or other medical service be obtained prior to payment for the item or service. Prior authorization requirements are established by payers to help control costs and ensure payment accuracy by verifying that an item or service is medically necessary, meets coverage criteria, and is consistent with standards of care. Stakeholders have stated that diverse payer policies, provider workflow challenges, and technical barriers create an environment in which the prior authorization process is a source of burden for patients, providers, and payers; a cause of burnout for providers; and a health risk for patients when it delays their care. 1

ONC's Strategy on Reducing Regulatory and Administrative Burden Relating to the Use of Health IT and EHRs, 2 released in 2020, identified challenges associated with the prior authorization process, including: (i) Difficulty in determining whether an item or service requires prior authorization; (ii) difficulty in determining payer-specific prior authorization requirements for those items and services; (iii) inefficient use of provider and staff time to navigate communications channels such as fax, telephone, and various web portals; and (iv) unpredictable and lengthy amounts of time to receive payer decisions. The Strategy notes that payers and health IT developers have addressed prior authorization in an ad hoc manner with interfaces that reflect individual payer technology considerations, payer lines of business, and customer-specific constraints. In order to address these issues, the Strategy included a number of recommendations to strengthen electronic prior authorization processes, such as: Leveraging health IT to standardize data and processes around ordering services or equipment; coordinating efforts to advance new standards approaches; and incentivizing adoption and/or use of technology that can generate and exchange standardized data to support documentation needs.

In order to further explore these and other stakeholder recommendations, and to build on recent efforts related to electronic prior authorization, we seek public comments on how the ONC Health IT Certification Program (Certification Program) could incorporate standards, implementation specifications, and certification criteria to advance electronic prior authorization.

The Certification Program  3 is a voluntary program under which health IT developers can obtain ONC certification for their health IT products. Requirements for certification are established by standards, implementation specifications, and certification criteria adopted through rulemaking by the Secretary. The Certification Program does not set any requirements for healthcare providers but supports the availability of certified health IT for use by healthcare providers under other federal, state, and private programs.

The Certification Program currently addresses electronic prior authorization for medications as part of the “electronic prescribing” certification criterion at 45 CFR 170.315(b)(3). On May 1, 2020, ONC published in the Federal Register the “21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program” final rule (21st Century Cures Act final rule). In this rule, ONC adopted the National Council for Prescription Drug Programs (NCPDP) SCRIPT Standard, Version 2017071, for electronic prescribing and specified electronic prior authorization transactions supported by the standard as optional transactions which health IT developers may support in their products (85 FR 25678). However, the Certification Program does not yet address electronic prior authorization for other items and services that healthcare consumers may seek to obtain. Accordingly, for the purposes of this RFI, we are interested in certified health IT functions not yet included under the Certification Program that can support electronic prior authorization processes for items and services other than medications.

In the 21st Century Cures Act final rule, ONC also finalized a new certification criterion at §  170.315(g)(10), “standardized API for patient and population services,” to support the availability of secure, standards-based application programming interfaces (APIs) in certified health IT products. This criterion requires the use of FHIR Release 4.0.1 and several implementation specifications (85 FR 25742). Under the API Maintenance of Certification Requirement for the ONC Health IT Certification Program at §  170.404(b)(3), Certified API Developers (as defined in §  170.404(c)) with API technology previously certified to the criterion in §  170.315(g)(8) must provide API technology certified to §  170.315(g)(10) to all API Information Sources (as defined in §  170.404(c)) deployed with certified API technology no later than December 31, 2022 (85 FR 70072). As discussed in the 21st Century Cures Act final rule, we believe the availability of standards-based API functionality in provider EHR systems is an important step towards increased interoperability across the healthcare system (85 FR 25740). While the initial use case for this criterion has focused on patients' access to their health information, we believe this functionality can support a wide range of use cases including research, public health, quality measurement, and healthcare operations, including prior authorization processes.

Pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Secretary must adopt electronic standards for use by “covered entities,” which is defined as including health plans, healthcare clearinghouses, and certain healthcare providers. The two standards adopted for referral certification and authorization transactions under HIPAA (§  162.1302) include: NCPDP Version D.0 for retail pharmacy drugs; and X12 Version 5010x217 278 (X12 278) for dental, professional, and institutional request for review and response for items and services. The X12 275 standard, which is used to transmit additional documentation to health plans, is not currently mandated under HIPAA, but it may be used to support the exchange of the additional information that is required for prior authorization. Though payers are required to accept the X12 278 standard for electronic prior authorization transactions when transmitted by a provider, and providers have been encouraged to conduct the transaction electronically, an annual survey conducted by the Council for Affordable Quality Healthcare has found that the prior authorization transaction standard, and electronic prior authorizations in general, have not been widely used. 4

HIPAA also requires that HHS adopt operating rules for the HIPAA standard transactions. Operating rules are defined at §  162.103 as the “necessary business rules and guidelines for the electronic exchange of information that are not defined by a standard or its implementation specifications as adopted for purposes of HIPAA Administrative Simplification.” The National Committee on Vital and Health Statistics (NCVHS) reviews the operating rules developed by certain entities and advises the Secretary as to whether HHS should adopt them (section 1173(g)(3) of the Social Security Act). The Secretary adopts operating rules by expedited rulemaking in accordance with section 1173(g)(4) of the Social Security Act. To date, HHS has adopted operating rules for three HIPAA transactions: Eligibility for a health plan, healthcare claim status (76 FR 40458), and healthcare electronic funds transfers (EFT) and remittance advice (77 FR 48008). 5

Several recent HHS efforts have focused on concerns about prior authorization, core technical and policy barriers, and approaches to improve prior authorization processes and reduce burden.

The Health Information Technology Advisory Committee (HITAC), established under section 3002 of the Public Health Service Act, has addressed prior authorization on several occasions. In October 2019, the HITAC put forth recommendations establishing Interoperability Standards Priority Target Areas and identified a “need for standards to support the integration of prior authorization into all applicable EHR-based ordering workflows.”  6 In 2020, ONC charged the HITAC with establishing the Intersection of Clinical and Administrative Data (ICAD) Task Force in order to produce information and recommendations on the merging of clinical and administrative data. The ICAD Task Force, which included members of the HITAC and NCVHS, industry stakeholders, and the public, explored a wide range of topics, including transport and exchange structures; areas for clinical and operations data alignment; and privacy and security rules and protections.

The ICAD Task Force's final recommendations  7 to the HITAC included a recommendation to “Establish Standards for Prior Authorization Workflows.” Specifically, the final report recommended that ONC work with CMS, other federal actors, and standards development organizations to “develop programmatic . . . specifications to create an authorization . . . such that the authorization and related documentation can be triggered in the relevant workflow system where the triggering event for the authorization is created.” The Task Force emphasized that a future standards ecosystem for prior authorization should “allow for standards development and evolution, so as to not preclude innovation, while including a `floor' of standards to promote rapid adoption through common implementation.” This approach can enable broad participation among stakeholders while avoiding unnecessary barriers for those who wish to innovate. It can also provide for rapid innovation and piloting, testing, and validation of new tools and standards to meet evolving needs. The final report also provided an overview of existing and emerging standards available to support prior authorization workflows. This included discussion of several HL7® FHIR® Implementation Guides (IGs) for exchange of prior authorization information, including the HL7® FHIR® Da Vinci Coverage Requirements Discovery (CRD), Documentation Templates and Coverage Rules (DTR), and Prior Authorization Support (PAS) IGs, which are discussed in more detail below.

In December 2020, the Centers for Medicare & Medicaid Services (CMS) released a notice of proposed rulemaking titled “Reducing Provider and Patient Burden by Improving Prior Authorization Processes, and Promoting Patients' Electronic Access to Health Information for Medicaid Managed Care Plans, State Medicaid Agencies, CHIP Agencies and CHIP Managed Care Entities, and Issuers of Qualified Health Plans on the Federally Facilitated Exchanges” (85 FR 82586, hereafter the Interoperability and Prior Authorization proposed rule). In that proposed rule, CMS proposed to require Medicaid Managed Care Plans, State Medicaid Agencies, Children's Health Insurance Program (CHIP) Agencies and CHIP Managed Care Entities, and Issuers of Qualified Health Plans on the Federally-Facilitated Exchanges (impacted payers), to establish standards-based APIs to streamline the process of submitting prior authorization requests and reduce burden on both providers and payers. Specifically, CMS proposed to require impacted payers to implement and maintain: (i) A Documentation Requirement Lookup Service API to enable providers to determine which items and services need a prior authorization and what documentation is needed to submit the prior authorization request (85 FR 82608); and (ii) a Prior Authorization Support API to facilitate transmission of prior authorization requests and decisions while maintaining alignment with, and facilitating the use of, HIPAA transaction standards (85 FR 82609).

In the same notice of proposed rulemaking, ONC issued the “Health Information Technology Standards and Implementation Specifications” proposed rulemaking (85 FR 82632; hereafter the ONC Healthcare Operations Standards proposed rule), in which ONC proposed to adopt the implementation specifications referenced in CMS' proposals (85 FR 82632-33), including the HL7® FHIR® CRD, DTR, and PAS IGs supporting the two API proposals related to prior authorization. ONC proposed these specifications for adoption by HHS as part of a nationwide health IT infrastructure supporting burden reduction, healthcare cost reduction, and improved care quality.

As part of the Interoperability and Prior Authorization proposed rule, CMS did not propose to require providers to interact with the proposed payer APIs to conduct prior authorization activities. Instead, CMS stated its belief that providers would adopt the technology and workflows needed to take advantage of these APIs on a voluntary basis over time, following updates by health IT developers to electronic health record systems and related tools. CMS requested comment on additional ways to encourage implementation of these functions in EHRs, including the adoption of certification criteria in the ONC Health IT Certification Program (85 FR 82610). In response to this request for comment, many stakeholders expressed support for HHS advancing EHR functionality to enable seamless exchange of information facilitating prior authorization.

While CMS continues to consider the proposals put forth in the Interoperability and Prior Authorization proposed rule and public comments received thereon, we believe there are additional steps which HHS could explore to improve electronic prior authorization capabilities within health IT systems. Based on stakeholder input, including the recommendations of the ICAD Task Force, we also believe there is strong support across healthcare industry stakeholders for additional action.

We are seeking comment on functional capabilities for electronic prior authorization that should be considered for inclusion in certified health IT. Specifically we are seeking comment on a core set of capabilities that would enable a certified Health IT Module or Modules to:

• Identify when prior authorization is applicable for an item or service, using clinical decision support and/or user input, and for receiving notifications of changes in such applicability;

• Query a payer API for prior authorization requirements for each item and service and identify in real time specific rules and documentation requirements;

• Collect clinical and administrative documentation needed to complete prior authorization documentation (electronic forms or templates) from a health IT system;

• Electronically submit completed documentation for prior authorization to a payer's API, along with supporting information;

• Receive a response from a payer regarding approval, denial (including a reason for denial), or need for additional information;

• Query a payer's system for updates on a pending prior authorization request and have a reason returned as to why a request is still pending; and

• Effectively capture and persist digital signatures (or other indications of provider review and assent), enable data integrity of documentation over time, and support other features necessary to meet payer administrative requirements associated with prior authorization transactions.

We invite further comment on whether these are the appropriate minimum capabilities needed for certified health IT systems to successfully interact with payer systems to complete key electronic prior authorization activities.

As noted above, in the ONC Healthcare Operations Standards proposed rule ONC proposed to adopt, on behalf of HHS, three implementation specifications relevant to electronic prior authorization (85 FR 82632):

• HL7® FHIR® Da Vinci Coverage Requirements Discovery (CRD) Implementation Guide. 8

• HL7® FHIR® Da Vinci Documentation Templates and Coverage Rules (DTR) Implementation Guide. 9

• HL7® FHIR® Da Vinci Prior Authorization Support (PAS) Implementation Guide. 10

These IGs were developed by the Da Vinci project, an initiative established in 2018 to help payers and providers positively impact clinical, quality, cost, and care management outcomes. 11 The Da Vinci project is part of the HL7® FHIR® Accelerator Program. 12 Under the Da Vinci project, industry stakeholders have facilitated the definition, design, and creation of use-case-specific implementation documentation and supporting materials based upon the HL7® FHIR® standard in order to address value-based care initiatives. Because the Da Vinci project is aligned with HL7® and its consensus-based approach to standards development, new and revised standards are easily and freely available for public use. While ONC proposed to adopt these IGs in the ONC Healthcare Operations Standards proposed rule in tandem with the proposed requirements for payers in the CMS Interoperability and Prior Authorization proposed rule (85 FR 82632), we are now seeking to understand the appropriateness of using these IGs to support functionality within certified health IT systems used by healthcare providers and other stakeholders.

Below we offer a description of each IG and a discussion of key issues to help the public provide input.

The purpose of this IG is to define a workflow whereby clinical IT systems can query coverage requirements from payer IT systems at the time treatment decisions are made. This ensures that clinicians and administrative staff can make informed decisions and meet the requirements of the patient's insurance coverage. Different insurance products may have varying requirements for prior authorization documentation. Providers who fail to adhere to payer requirements may not receive payer coverage for care provided or may cause a delay in needed care, which may result in increased out of pocket costs for patients, potential additional visits and changes in the preferred care plan, health risks for the patient, and increased burden for all parties involved.

This IG utilizes the Clinical Decision Support (CDS) Hooks specification  13 in order to: Establish triggers for querying payers for coverage requirements; define how payers publish services describing coverage requirements; define how clinical systems query payers for coverage requirements; and define how clinical systems present coverage requirements to users for clinical decision support. The CRD IG allows provider IT systems to query payer IT systems via CDS Hooks to determine if there are documentation requirements for a proposed medication, procedure, or other service. When a provider triggers a prior authorization-related CDS Hook within their IT system indicating that payer documentation requirements exist for a product or service, a CDS Hooks Card(s) is returned with information about the documentation requirements and options to read, accept a suggestion, or interact with an app to address those requirements.

The CRD IG extends the CDS Hooks specification to define additional hook resources, a hook configuration mechanism, additional prefetch capabilities, and additional response capabilities. In addition to the reliance of this IG on the nascent CDS Hooks specification, these extensions may change in the future, depending on how they are incorporated into the CDS Hooks specification, which may cause compatibility issues with future versions of the CRD IG.

The information that may be shared using this IG includes:

• Updated coverage information.

• Alternative preferred/first-line/lower-cost services/products.

• Documents, rules, forms, templates, and links to resources related to coverage.

• Updated clinical information for decision support.

• Indications of whether prior authorization is required.

The purpose of the DTR IG is to ensure the completion of documentation needed to demonstrate medical necessity for a proposed medication, procedure, or other service. This IG specifies how payer coverage rules can be executed in a provider context to ensure that documentation requirements are met. A companion to the CRD IG, the DTR IG leverages the ability of CDS Hooks Cards to link to Substitutable Medical Applications, Reusable Technologies (SMART) on FHIR  14 apps to launch and execute payer rules. The DTR IG describes the interactions between a SMART on FHIR app and the payer's IT system to retrieve the payer's documentation requirements, in the form of Clinical Quality Language (CQL)  15 and a FHIR Questionnaire resource, for use by the provider and the provider's IT system. The provider's IT system communicates with the payer's IT system, which informs the provider's system of the documentation that needs to be completed using the CQL logic and the FHIR Questionnaire resource. To populate the FHIR QuestionnaireResponse, which are the results of the FHIR Questionnaire resource, the IG describes a process where the provider's IT system auto-populates as many fields as possible, then alerts the provider to any information gaps, which the provider can complete manually. The IG describes that all relevant information from these transactions is stored in the provider's IT system for future use, including to support subsequently providing the FHIR QuestionnaireResponse to the payer as part of documentation for prior authorization.

The PAS IG uses the FHIR standard as the basis for (i) assembling the information necessary to substantiate clinical need for a particular treatment; and (ii) submitting the assembled information and prior authorization request to an intermediary before transmission to the intended recipient. Under the workflow specified in the PAS IG, to meet regulatory requirements for HIPAA standard transactions discussed above, the FHIR interface communicates with an intermediary functionality (such as a clearinghouse) that converts the FHIR requests to a HIPAA compliant X12 278 request transaction for submission to the payer. In some cases, the payer itself, if acting as the intermediary or clearinghouse, may convert the request to a HIPAA compliant X12 278 transaction. Under the workflow specified in the PAS IG, the response from the payer would then flow back through the intermediary functionality using X12 and would be made available to the provider's health IT system using the FHIR standard. The response would indicate whether the payer approves (and for how long), denies (with a reason for denial), or requests more information about the prior authorization request. This IG also defines capabilities around the management of prior authorization requests, including checking on the status of a previously submitted request, revising a previously submitted request, and cancelling a request.

Based on public input to date, including comments received on the CMS Interoperability and Prior Authorization and ONC Healthcare Operations Standards proposed rules in December 2020, and our own review, we have identified a number of issues that may be relevant to the use of these IGs in certified health IT. These include concerns that the IGs lack maturity and have not yet undergone extensive testing in production and rely on other IGs and features in FHIR that are immature. In some cases, the available versions of the IGs propose changes and pre-adopt changes to dependent IGs, or request feedback on design considerations within the IGs that may impact compatibility between these versions and future versions. Additional issues regarding the PAS IG include concerns around the translation from FHIR to X12 included as part of the specification. While enabling compliance with existing regulatory requirements, the translation approach may increase the number of transactions necessary for exchange as well as dependency on intermediaries. Issues regarding the DTR and CRD IGs include concerns that the detailed workflow described in the specification leverages CDS Hooks functionality, which has not yet been adopted in any certification criterion under the Certification Program. We welcome additional information about these IGs, especially given that a year has passed since we last heard from the public on this topic as part of the ONC Healthcare Operations Standards proposed rule.

The implementation specifications described above represent important standards development collaborations between industry stakeholders. We believe these activities may present an important pathway to streamlining electronic prior authorization processes, as reflected in our proposal in the ONC Healthcare Operations Standards proposed rule. However, we understand that there are capabilities and standards currently supported by certified health IT products that may facilitate certain elements of prior authorization workflows. For instance, electronic exchange of healthcare attachments can be used to transmit clinical information in conjunction with an electronic administrative transaction to meet health plan requirements. ONC is aware of several standards initiatives within the last five years focused on advancing standards and functionality supporting clinical documents for a broad range of use cases, including for attachments within prior authorization and other administrative workflows.

These initiatives include the HL7 implementation guide based on the Consolidated Clinical Document Architecture (C-CDA) Release, and HL7 FHIR Documents:

• HL7 C-CDA R2 Attachment Implementation Guide: Exchange of C-CDA Based Documents, Release 1. 16

• HL7 FHIR Release 4, Section 3.3: FHIR Documents. 17

The HL7 C-CDA R2 Attachment Implementation Guide (CDA Attachments IG) defines the requirements for sending and receiving standards-based electronic attachments and incorporates certain administrative information into the document header. The C-CDA document templates are designed to be electronic versions of the most common types of paper document attachment information. ONC has adopted the C-CDA standard for use in the Certification Program in §  170.205.

An HL7 FHIR Release 4 FHIR Document (FHIR Documents) is a set of healthcare-related information that is assembled into a single package that provides a coherent statement, establishes its own context, and includes attribution with regard to who is making the statement. The FHIR Documents section of the base FHIR Release 4 standard (adopted by ONC in §  170.215) specifies how FHIR resources can be used to build documents that represent a statement of healthcare information, including representing clinical observations and services as a cohesive composition. The resulting document is an immutable set of resources with a fixed presentation that can be used for a wide range of use cases, including administrative transactions.

Healthcare and health IT stakeholders have called for a standardized approach to electronic healthcare attachments, while emphasizing that solutions should align with advances in interoperability and that HHS policy should allow for innovation (for example, see public comments received by the HITAC in 2019, 18 the NCVHS in 2018, 19 2020, 20 and 2021, 21 and the joint ICAD taskforce in 2020). Because of the ongoing advancement of health IT standards and functionality supporting clinical and care coordination workflows, there are several options available for interoperable exchange today, including both document-based exchange using the C-CDA base standard and exchange using standardized APIs using the FHIR base standard. This increase in interoperable options can support the combination of clinical and administrative data and allow for more timely and effective approvals of prior authorization requests.

We understand that stakeholders may also have concerns with these potential approaches, for instance, concerns related to lack of testing and production implementation of these approaches that are specific to the prior authorization use case, despite widespread use of the underlying standards for other purposes. Regarding the underlying standards for each approach, we understand that while the C-CDA has the benefit of being in widespread use, the more inflexible nature of the standard may increase the ongoing burden of maintenance and updates to the standard over time. FHIR solutions offer a more flexible and agile option over time, but there may be additional development and specification needed for their effective implementation. We welcome additional information about these standards and implementation specifications for this part of the prior authorization workflow.

We also welcome further information on any other additional areas we should consider in supporting the exchange of healthcare attachments in prior authorization workflows. For example, we understand there is also ongoing work to create a FHIR-based IG for healthcare attachments. 22 In addition, while the scope of this RFI is focused on prior authorization processes, we recognize that the systems used for this purpose may also support a wide range of administrative transactions and operations workflows and that healthcare attachments are used for other administrative and operations purposes such as claims processing. In the same way that aligned standards between administrative systems and clinical systems can optimize effectiveness, aligned standards across administrative use cases may also support efficiency. We therefore welcome public comment on the potential intersection with other administrative and operations processes that we should consider when exploring options for healthcare attachments, as well as comments on how to best harmonize these efforts. Finally, we welcome public comment on other standards initiatives, pilot projects, or health IT resources that we should explore to identify promising best practices, emerging standards, or innovative approaches to advance interoperable health IT for healthcare operations use cases.

ONC seeks public comments on whether to adopt additional standards, implementation specifications, and certification criteria as part of the Certification Program to ensure that technology is available to providers for the automated, electronic completion of prior authorization tasks. In addition to general comments on the issues presented above, we are seeking input on the following questions:

• Do the functional capabilities described above include all necessary functionality for certified Health IT Modules to successfully facilitate electronic prior authorization processes? Are there additional capabilities that should be included in certified Health IT Modules to address these needs? Should any of these functional capabilities not be included in certified Health IT Modules (please cite the reason they should be excluded) or should ONC focus on a more limited set of functional capabilities for certified Health IT Modules than those described above?

• Should ONC adopt a certification criterion for prior authorization that accounts for the full, HIPAA compliant workflow for prior authorization transactions including translation from FHIR to the X12 standard? Or should ONC adopt certification criteria that include only the workflows up to the point of translation? What ongoing challenges will stakeholders face if there is a need to translate between HIPAA-adopted standards and other standards that have only been adopted under the Certification Program used to support prior authorization transactions? How should HHS address alignment between standards adopted for HIPAA transactions and standards adopted under the Certification Program?

• If ONC were to propose to include these functional capabilities as part of the Certification Program, how should a new certification criterion (or multiple certification criteria) be structured, including technical requirements, attributed standards, and implementation specifications? ONC's experience adopting certification criteria suggests that, at times, combining related functions into a single Health IT Module is most appropriate, while in other cases, health IT functionalities are best represented by separate certification criteria, despite being functionally related. For instance, under a single criterion, different products and services in the market may be “tightly coupled” for the purposes of certification, even when they can be purchased and implemented separately. We seek the public's input on which functional capabilities for prior authorization should be tested and certified together as part of one certification criterion, and which capabilities should be separated into different certification criteria.

• What is the current readiness of the three FHIR-based Da Vinci IGs described above for adoption as part of certification criteria for health IT? Given limited testing of these specifications to date, what would be a feasible timeline for use of these IGs in production for prior authorization transactions? What, if any, additional changes are needed for these IGs prior to adoption as part of certification criteria for health IT?

• If the existing IGs are not yet ready for adoption, should ONC still propose certification criteria? Should ONC consider proposing certification criteria incorporating the FHIR Release 4 base standard but delay adopting implementation specifications until a later date? What are the potential risks of this approach?

• If we were to adopt certification criteria referencing the base standard and then update those criteria to integrate implementation specifications in the future, how should these integrations be handled? When and how should the existing systems be replaced? All at once, or as a series of transitional steps?

• Do the Da Vinci IGs effectively support Federal and state legal requirements and/or health plan compliance requirements for clinical documentation, for example, signatures (or other indications of provider review and assent), record retention over long periods of time, and document security to ensure data integrity once stored?

• What alternative approaches to designing certification criteria should ONC explore that are not based on the three Da Vinci IGs described herein?

• Are there simplified approaches to the workflows described in the Da Vinci IGs that ONC should consider as alternative approaches to support electronic prior authorization?

• Are there new IGs which need to be developed in order to integrate with other workflows relevant to prior authorization? In particular, what IGs may still need to be developed in order to integrate with HIPAA administrative transaction standards?

• Would the specifications within the CDA Attachments IG, if adopted as part of a certification criterion, support more effective exchange of healthcare attachments for prior authorization? Would any changes to the IG be needed, or would additional functionalities or standards be required for effective implementation of the CDA Attachments IG in certified health IT?

• Would the use of FHIR Documents, if adopted as part of a certification criterion, support more effective exchange of healthcare attachments? Are there any gaps or constraints that would need to be further specified, such as through an IG, in order for FHIR Documents to be effective for this use case when implemented in certified health IT? Would the adoption of a certification criterion for FHIR Documents support other administrative use cases beyond prior authorization?

• Given limited testing of these approaches to date, what would be a feasible timeline for use of the CDA Attachments IG or FHIR Documents in production for prior authorization transactions?

• Which of these approaches would better accommodate improvements over time to meet payer and provider needs? Should ONC consider adopting certification criteria referencing one approach over the other, or should ONC consider supporting both approaches within certified health IT?

• If the IGs developed by the Da Vinci Project, or an alternate set of IGs addressing the full scope of prior authorization workflows, are not yet ready for adoption in certified health IT, should ONC propose certification criteria to support healthcare attachments transactions for prior authorization alone?

• Healthcare attachments are used for a wide range of operations and administrative workflows beyond prior authorization. Are either of the standards discussed above commonly used in other administrative or operations transactions? Would there be a burden or benefit to using either, or both, standards in light of other administrative or operations workflows? Are there additional standards or implementation specifications ONC should consider that are in common use for healthcare attachments used in other administrative or operations workflows?

• How could potential changes to the Certification Program to better support prior authorization positively impact healthcare consumers?

• How could potential changes reduce the time for patients to receive needed healthcare services, reduce patient non-adherence, and/or lower out-of-pocket costs?

• Besides the provider to payer interactions discussed in this RFI, is there additional functionality that could be added to the Certification Program that would better support patients' participation in the prior authorization process?

• To what degree is availability of electronic prior authorization capabilities within certified health IT likely to reduce burden for healthcare providers who currently engage in prior authorization activities?

• To what degree are healthcare providers likely to use these new capabilities across their patient panels? Will additional incentives or requirements be needed to ensure healthcare providers effectively use these capabilities? What accompanying documentation or support would be needed to ensure that technology capabilities are implemented in ways that effectively improve clinical workflows?

• What estimates can providers share about the cost and time (in hours) associated with adopting and implementing electronic prior authorization functionality as part of care delivery processes?

• What estimates can health IT developers share about the cost and time (in hours) of developing electronic prior authorization functionality within certified health IT products?

• What factors would inform the burden for health IT developers to develop certified Health IT Modules for electronic prior authorization based on the three Da Vinci IGs described above?

• What would be the burden on health IT developers for prior authorization certification criteria referencing the base FHIR standard if there were not yet specific IGs adopted as well? How would potentially moving to criteria with use case specific IGs over time impact development burden? Would such a staged approach be detrimental or beneficial to the long-term development timeline and burden for health IT developers seeking to support electronic prior authorization?

• How could the Certification Program support the technology needs of healthcare payers in implementing electronic prior authorization? Should ONC consider payer workflows in the development of certification criteria to support the potential use of certified Health IT Modules by healthcare payers? Would the availability of certified Health IT Modules supporting these workflows reduce the burden for healthcare payers of engaging with healthcare providers in prior authorization processes?

• To what extent would healthcare payers be likely to use these certified Health IT Modules if they were available? To what extent are health IT developers likely to seek certification for Health IT Modules supporting payer workflows if these certification criteria were available?

This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 21-123, adopted December 14, 2021, and released December 15, 2021. The full text is available online at https://docs.fcc.gov/public/attachments/FCC-21-123A1.pdf. The document is also available for inspection and copying during business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554. To request materials in accessible formats for people with disabilities, send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Interested parties may file comments and reply comments on or before the dates indicated in the DATES section above. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

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

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

In this notice of proposed rulemaking (NPRM), the Commission builds upon its efforts to update rules governing a new generation of non-geostationary satellite orbit, fixed-satellite service (NGSO FSS) systems. In an accompanying Order, we grant in part a petition for rulemaking filed by Space Exploration Holdings, LLC (SpaceX). In the NPRM, we seek comment on further revisions to the spectrum sharing requirements among NGSO FSS systems. We propose that the Commission's existing spectrum sharing mechanism for NGSO FSS systems will be limited to those systems approved in the same processing round. We also propose to adopt a rule providing that later-round NGSO FSS systems will have to protect earlier-round systems, and invite comment on how to define such protection. In addition, we seek comment on whether to sunset, after a period of time, the interference protection afforded to an NGSO FSS system because of its processing round status. This rulemaking will continue to facilitate the deployment of NGSO FSS systems capable of providing broadband and other services on a global basis, and will promote competition among NGSO FSS system proponents, including the market entry of new competitors.

In recent years, the Commission has received an unprecedented number of applications for NGSO space station licenses, including for NGSO FSS systems.

Applications for NGSO FSS system licenses are considered in groups based on filing date, under a processing round procedure. The Commission reviews each application in the processing round and all the pleadings filed in response to each application. Based upon this review and consideration of such other matters as it may officially notice, the Commission will grant all the applications for which the Commission finds that the applicant is legally, technically, and otherwise qualified, that the proposed facilities and operations comply with all applicable rules, regulations, and policies, and that grant of the application will serve the public interest, convenience and necessity.

The Commission has adopted rules for spectrum sharing among NGSO FSS systems. NGSO FSS operators must coordinate with one another in good faith the use of commonly authorized frequencies. Absent a coordination agreement between two or more NGSO FSS satellite systems, a default spectrum-splitting procedure applies. Under the default spectrum-splitting procedure, whenever the increase in system noise temperature of an earth station receiver, or a space station receiver for a satellite with on-board processing, of either system, ΔT/T, exceeds 6 percent due to interference from emissions originating in the other system in a commonly authorized frequency band, such frequency band will be divided among the affected satellite networks in accordance with the following: (1) Each of n (number of) satellite networks involved must select 1/n of the assigned spectrum available in each of these frequency bands; (2) the affected station(s) of the respective satellite systems may operate in only the selected (1/n) spectrum associated with its satellite system while the ΔT/T of 6 percent threshold is exceeded; and (3) all affected station(s) may resume operations throughout the assigned frequency bands once the threshold is no longer exceeded.

In the NGSO FSS Report and Order, the Commission stated that it will “initially limit” sharing under the ΔT/T of 6 percent threshold to qualified applicants in a processing round. The Commission explained that treatment of later applicants must necessarily be case-by-case based on the situation at the time, and considering both the need to protect existing expectations and investments and provide for additional entry as well as any comments filed by incumbent operators and reasoning presented by the new applicant.

On April 30, 2020, SpaceX filed a petition for rulemaking to revise and clarify the Commission's spectrum sharing rules for NGSO FSS systems. SpaceX proposes that the Commission codify protection rights for NGSO FSS systems from those systems authorized through a later processing round.

After review of the SpaceX Petition and the comments and opposition filed, we conclude that the record on the Petition discloses sufficient reasons to justify the institution of a rulemaking proceeding seeking further comment on such a proposal. Indeed, the Petition raises fundamental issues affecting the spectrum access rights of NGSO FSS systems. When the Commission recently considered and revised several important elements of NGSO FSS licensing, it left to “case-by-case” evaluations how NGSO FSS applications filed after a processing round would be treated. Since then, the Commission has initiated second NGSO FSS processing rounds in frequency bands subject to a prior processing round and gained further experience implementing a case-by-case approach to NGSO FSS applications filed after a relevant processing round. The time is ripe to consider updating the Commission's rules concerning these issues.

We therefore initiate a notice of proposed rulemaking to consider revisions to the treatment of NGSO FSS systems authorized through different processing rounds. We also seek comment on the application of any rule changes in this proceeding to existing licensees, grantees, applicants, and market access petitioners. Further consideration of these issues is appropriate because of the strong interest shown not only in multiple NGSO FSS applications, but also in the comments on the Petition. Given the Commission's 2017 rulemaking on NGSO FSS issues and the ideas already submitted in response to the petition for rulemaking, we believe that proceeding with a notice of proposed rulemaking at this stage will allow for fulsome comment of the issues without forcing the delay associated with an initial notice of inquiry.

In its Petition, SpaceX requests that the Commission revise or clarify the spectrum sharing obligations that apply among co-frequency NGSO FSS systems authorized through different processing rounds. SpaceX proposes that the default spectrum-splitting procedure be expressly limited to those NGSO FSS systems authorized within the same processing round. Among systems authorized through different processing rounds, SpaceX proposes that later-round NGSO FSS systems protect earlier-round systems up to a specified interference-to-noise (I/N) level to be developed and adopted by the Commission, but that this protection should sunset after a period of time. SpaceX also argues that sharing of beam-pointing information should be explicitly required among NGSO FSS operators to facilitate interference analyses. We address and invite comment on these proposals, and also seek comment on alternative proposals raised in the comments, below.

While the Commission stated in the NGSO FSS Report and Order that it will “initially limit” the spectrum-splitting procedure to qualified NGSO FSS applicants in a processing round, there is no such limitation in the relevant rule text. SpaceX contends that NGSO FSS operators have planned, invested, and begun deploying based on their assessment of the specific characteristics of other participants in their processing round, and that these characteristics allow licensees to estimate the amount of spectrum likely to be available during a situation governed by the spectrum-splitting procedure. To provide greater certainty to NGSO FSS operators as to their future sharing environment, SpaceX proposes that the Commission adopt a rule providing that the existing spectrum-splitting procedure applies only to NGSO FSS systems authorized within the same processing round.

This proposal is consistent with Commission licensing decisions. In each recent NGSO FSS system license and grant of market access, the requirement to apply the default spectrum-splitting procedure has been limited to among NGSO FSS systems filed within the same processing round. We believe that adopting a rule limiting the existing spectrum-splitting procedure to only NGSO FSS systems authorized within the same processing round will provide greater clarity and regulatory certainty to NGSO FSS system licensees and market access recipients, and therefore propose to adopt it. We invite comment on this proposal. This approach, if adopted, would eliminate the “case-by-case” consideration of how to treat later applicants relative to approved systems, which the Commission previously explained would take into account various factors, including the potential for additional entry. We seek comment on how limiting the existing spectrum-splitting procedure to NGSO FSS systems authorized within the same processing round will impact later applicants, including the potential for additional entry.

For an NGSO FSS licensee to invest potentially billions of dollars in a new system, SpaceX argues it must have some certainty that its spectrum rights will be maintained as later-filed NGSO FSS applications are considered. SpaceX therefore proposes that NGSO FSS systems filed in a later processing round be required to protect NGSO FSS systems authorized through an earlier processing round.

We believe that adopting this principle in our rules would clarify the rights and obligations of NGSO FSS system grantees. The protection of an NGSO FSS system from systems authorized through a subsequent processing round goes to the heart of the stability of interference environment the Commission intended to create through use of the processing round procedure. Indeed, the Commission's licensing of a later-round NGSO FSS system has confirmed that it must protect earlier-round systems from harmful interference.

We therefore propose to adopt a rule that NGSO FSS licensees and market access recipients are entitled to protection from NGSO FSS systems authorized through later processing rounds. Specifically, we propose to adopt a rule providing that, prior to commencing operations, an NGSO FSS licensee or market access recipient must either certify that it has completed a coordination agreement with any operational NGSO FSS system licensed or granted U.S. market access in an earlier processing round, or demonstrate that it will not cause harmful interference to any such system with which coordination has not been completed. We also discuss below alternative, specific protection criteria that could be developed for this proposed rule. Notwithstanding a requirement to protect earlier-round NGSO FSS systems, we expect that coordination among NGSO FSS operators, including those authorized through different processing rounds, offers the best opportunity for efficient spectrum sharing. Accordingly, we also propose to adopt a rule providing that the good-faith coordination requirement applies among all NGSO FSS grantees, including those authorized through different processing rounds. We invite comment on these proposals, including on the burdens associated with any technical demonstrations of compatibility. In particular, we invite comment on how best to establish the protection of authorized NGSO FSS systems under deployment while encouraging competition and new entrants into the market.

To quantify the level to which a later-round NGSO FSS system would have to protect an earlier-round system, SpaceX recommends the Commission develop and adopt an appropriate interference-to-noise (I/N) limit. While not proposing a specific I/N value, SpaceX suggests that such a limit incorporate a standard reference antenna mask and standard noise temperature. Applicants in a later processing round would be required to demonstrate that their proposed systems could comply with the I/N limit based on a probabilistic analysis. In addition, such an I/N limit could specify a percentage of time during which the limit may be exceeded.

Beyond the initial difficulty of developing such an I/N limit for protection of NGSO FSS systems, commenters raise potential shortcomings of an I/N approach. Because the I/N limit would reflect generic NGSO system parameters and not the parameters of the NGSO system to be protected, it could provide insufficient protection to an NGSO system with especially sensitive antennas. Adoption of an I/N limit could also discourage coordination if either the earlier-round licensee or later-round licensee preferred to operate within the I/N limit rather than a negotiated alternative. Requiring applicants to perform interference analyses for the potentially thousands of satellites authorized through previous processing rounds, many of which may never be launched, could also place undue burdens on new entrants, especially those with limited resources.

Commenters propose alternatives to an I/N limit that would provide for the protection of earlier-round NGSO FSS systems from later-round systems. ViaSat suggests the use of network performance degradation as an interference criterium. AST recommends the Commission consider an approach that is harmonized with Recommendation ITU-R S.1323-2 or RR No. 22.5L of the ITU Radio Regulations, which use for a protection criterion the increase of the percentage of the time allowance for the carrier-to-noise (C/N) value associated with the shortest percentage of time specified in the short-term performance objective of the system to be protected. O3b proposes that NGSO FSS systems authorized through different processing rounds make use of the existing spectrum-splitting mechanism, but that the earlier-round system be entitled to use 75% of the available spectrum and the later-round system be entitled to use 25% of the available spectrum, instead of the equal split applicable to NGSO FSS systems authorized through the same processing round.

We believe that quantifying a level of protection for earlier-round systems would clarify the rights and obligations of NGSO FSS licensees in different processing rounds. We invite specific comment on what an appropriate I/N limit would be to protect NGSO FSS systems, what an appropriate percentage of time would be during which the I/N limit may be exceeded, and what the standard reference antenna mask and noise temperature should be in developing an appropriate I/N value or other criteria. In addition, we invite comment on the alternative proposals above and on any other appropriate means to ensure protection of earlier-round NGSO FSS systems from later-round systems, while allowing meaningful new entry and encouraging operator-to-operator coordination as the first resort.

In particular, we invite comment on whether to adopt criteria based upon the percentage of degraded throughput experienced by the NGSO FSS system. Considering the degraded throughput may be appropriate because most, if not all, modern NGSO systems will use adaptive coding and modulation (ACM) to allow maintaining a satellite connection in spite of signal degradation, but at lower throughput rates. Such criteria could be developed consistent with Recommendation ITU-R S.2131-0, “Method for the determination of performance objectives for satellite hypothetical reference digital paths using adaptive coding and modulation.” That recommendation suggests that satellite systems using ACM should be designed to meet performance objectives stated as either the packet error ratio or the spectral efficiency (bit/s/Hz) as a function of C/N. While this Recommendation does not provide specific values for the percentage of degraded throughput that should not be exceeded, we invite comment on establishing a limit under such a criteria. We also seek comment on specific values and on the suitability of this approach in general, including on the burdens of computing any limit that may be adopted under the alternatives set forth above. Should a degraded throughput analysis consider unavailability as well?

The Commission's rules require NGSO FSS operators to coordinate in good faith the use of commonly authorized frequencies. Beyond this general requirement, SpaceX proposes that earlier-round NGSO FSS system operators be specifically required to share data on their beam locations with later-round NGSO FSS system operators to facilitate analysis of and compliance with its proposed I/N metric. SpaceX argues that confidentiality or non-disclosure agreements could ensure that data is not used by competitors for any purpose other than avoiding interference, such as marketing. Several commenters raise concerns that a requirement to share beam data may be inefficient, impractical, or overly competitively sensitive in certain cases. One commenter also suggests the Commission adopt broader information sharing requirements for operator-to-operator coordination.

We believe that information sharing among NGSO FSS operators is essential to their efficient use of spectrum. Beyond our existing, flexible, good-faith coordination requirement, we invite comment on whether to specify sharing of certain types of information, such as beam-pointing information, that may be necessary for the implementation of any spectrum-sharing solution or protection criteria between NGSO FSS systems. Such information sharing requirements could involve NGSO FSS systems authorized through the same processing round or different processing rounds. We also seek comment on any practical concerns associated with such information sharing, and how best to address any associated, potential, competitive harms. For example, should the Commission adopt rules or mechanisms, for example, a protective order, to facilitate the sharing of the information? More broadly, should we add a definition of “good faith” coordination in our rules? If so, what elements should it include? For example, should NGSO FSS operators specifically be required to share all necessary technical information to perform an interference analysis, and do so in a timely fashion upon request, to meet the “good faith” coordination standard? We also seek comment on how the Commission might encourage NGSO FSS operators to build and deploy systems capable of sharing beam-pointing data and enabling other methods of spectrum sharing through coordination. How could the Commission encourage the development and deployment of systems that are more spectrally efficient? How might the Commission modify its NGSO sharing rules to incentivize flexible and efficient deployment?

SpaceX proposes that the protection of earlier-round systems from later-round systems sunset after a period of time. SpaceX argues that a sunsetting provision would encourage earlier-round licensees to coordinate with later-round licensees, and avoid entrenching incumbents and stymieing future innovation. One commenter similarly argues that processing rounds may be “condensed” and protections sunset over time. Sunsetting could occur, for example, six years after licensing to coincide with the first NGSO system deployment milestone, ten years after licensing, or fifteen years after licensing. Other commenters argue that any sunsetting provision would be arbitrary, premature, or unnecessary given the Commission's existing good-faith coordination requirement.

We invite comment on sunsetting of protections applied to NGSO FSS systems, including the timing of such sunsetting. In particular, we seek comment on whether sunsetting protection for NGSO FSS systems under deployment would unduly disrupt their operations. Should we consider sunsetting protections for an NGSO FSS system before the expiration of its 15-year license term? Would a shorter sunset period better promote competition? If so, when should the trigger/start date for sunsetting begin? At the date of the license grant, the beginning of the license period, or some other time? Should we expect that advances in technology for second-generation NGSO FSS systems will make sharing with new entrants easier? Or, conversely, would allowing new entrants to take advantage of technological enhancements in incumbent systems dull the incentives for incumbents to invest in such upgrades? What protection should apply to an NGSO FSS system after any sunsetting? How would sunsetting of protections affect the willingness to invest in NGSO FSS system development, and the likelihood of robust services being deployed to the public by such systems? Would a sunsetting provision promote competition, including the market entry of new competitors? Are there other ways to fashion a sunsetting provision that would maintain the reasonable expectations of earlier licensees and at the same time further the goal of promoting competition?

NGSO FSS systems and system proposals currently have a variety of Commission approval statuses, including pending applications for new systems and authorizations for systems that were filed for in a previous processing round. Because of the large investments already made and planned for these novel and ambitious systems, we seek comment on whether to apply all, or some, of the rule changes adopted in this proceeding, including changes to the good-faith coordination requirement, only to new license applications, license modification applications, application amendments, and market access petitions filed after the new rules go into effect. Maintaining the expectations of current licensees, market access recipients, applicants, and market access petitioners may serve the public interest by providing regulatory stability upon which these systems may continue to develop. However, we invite comment on whether applying rule changes to existing grantees or pending applicants would advance competition and encourage new entry into the market. If we did apply new rules to existing grants or pending applications, should we allow the grantees and applicants a period of time to request modification of their authorizations or to amend their applications before the new rule changes take effect? To the extent that we apply the revised rules to existing grants or pending applications, we seek comment on the costs and benefits of applying the rule changes to existing grantees or pending applicants that are part of already-closed processing rounds. How would this affect expectations of existing grantees or applicants who have filed by specific deadlines to gain entry into a particular processing round? If we decide not to apply new rules to existing grantees, what impact, if any, would that have on existing grant conditions already incorporated into NGSO FSS system authorizations, including those grants conditioned on compliance with rules or policies adopted by the Commission in the future?

Finally, the Commission, as part of its continuing effort to advance digital equity for all, 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 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.

As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this NPRM. We request written public comments on this IRFA. Commenters must identify their comments as responses to the IRFA and must file the comments on or before the dates indicated in the DATES section above and in accordance with the comment filing requirements. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

In recent years, the Commission has received an unprecedented number of applications for NGSO space station licenses, including for NGSO FSS systems. Traveling closer to the Earth than a traditional GSO satellite, low- and medium-orbit NGSO FSS satellite constellations are capable of providing broadband services to industry, enterprise, and residential customers with lower latency and wider coverage than was previously available via satellite. This rulemaking will continue to facilitate the deployment of NGSO FSS systems capable of providing broadband and other services on a global basis, and will promote competition among NGSO FSS system proponents, including the market entry of new competitors.

The notice of proposed rulemaking (NPRM) seeks comment on proposed revisions to the Commission's rules governing the treatment of NGSO FSS systems filed in different processing rounds. In particular, the NPRM proposes that the Commission's existing spectrum sharing mechanism for NGSO FSS systems will be limited to those systems approved in the same processing round. The NPRM also proposes to adopt a rule providing that later-round NGSO FSS systems will have to protect earlier-round systems, and invites comment on how to define such protection. In addition, the NPRM seeks comment on whether to sunset, after a period of time, the interference protection afforded to an NGSO FSS system because of its processing round status.

The proposed action is authorized under sections 4(i), 7(a), 303, 308(b), and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303, 308(b), 316.

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

Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $35 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

The NPRM invites comment on potential changes to the spectrum sharing requirements among NGSO FSS satellite systems. Because of the costs involved in developing and deploying an NGSO FSS satellite constellation, we anticipate that few NGSO FSS operators affected by this rulemaking would qualify under the definition of “small entity.”

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

The NPRM invites comment on different means to protect NGSO FSS systems licensed through the Commission's processing round framework, including, as one option, whether those NGSO FSS systems authorized through a later processing round should be required to submit technical demonstrations that they will not interfere with NGSO FSS systems authorized through an earlier processing round. The NPRM invites specific comment on the burdens associated with such submissions, and also seeks comment on alternative means of protection of NGSO FSS systems.

None.

Accordingly, it is ordered , pursuant to 47 CFR 1.407, that the petition for rulemaking filed by Space Exploration Holdings, LLC, Revision of Section 25.261 of the Commission's Rules to Increase Certainty in Spectrum Sharing Obligations Among Non-Geostationary Orbit Fixed-Satellite Service Systems, RM-11855, is granted in part and deferred in part , the opposition filed by WorldVu Satellites Limited is denied in part and deferred in part , and the opposition filed by Theia Holdings A, Inc. is deferred .

It is further ordered , pursuant to 47 U.S.C. 154(i), 157(a), 303, 308(b), 316, that this Notice of Proposed Rulemaking is adopted.

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center will send a copy of this Order and Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 25 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 21-502, adopted December 23, 2021, and released December 23, 2021. The full text of this Commission decision is available online at https://apps.fcc.gov/ecfs/. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 to read as follows:

The revisions read as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making and Order to Show Cause, MB Docket No. 21-483, adopted December 17, 2021, and released December 17, 2021. The full text of this document will be available for public inspection and copying via ECFS. The full text of this document can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/ndbedp. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

The Notice of Proposed Rulemaking component of this document solicits comment on the proposed allotment of Channel 263A at Hamilton, Texas, because it could result in a second local service to that community as proposed by B Plus Broadcasting, LLC. A staff engineering analysis reveals that Channel 263A can be allotted to Hamilton in conformity with the FCC's rules at reference coordinates 31-39-48.1 NL and 98-21-29.4 WL.

The Order to Show Cause requires S Content to show why the license of KNUZ(FM), San Saba, Texas, should not be modified to specify operation on Channel 291A in lieu of Channel 224A at San Saba to accommodate the new FM station on Channel 263A at Hamilton and the substitution of Channel 224A in lieu of Channel 263A for KRNR(FM), Goldthwaite, Texas.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

In support of its channel substitution request, the Petitioner states that WNYT has a long history of significant reception problems given the local terrain. According to the Petitioner, once the station began operating solely in digital on VHF channel 12, it received numerous complaints from viewers about the station's over-the-air signal, and in order to address these problems, the Petitioner applied for and received modification authorizations to increase WNYT's effective radiated power and tried other means to improve viewers' digital reception, including constructing two digital replacement translators. The proposal will result in a net gain in service to 289,588 persons within WNYT's predicted noise limited service contour, and while it will result in a loss population of 210 persons within the predicted contour, all of the population located within WNYT's original DTV channel 12 noise limited contour will continue to receive NBC service, except for 130 people.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 22-13; RM-11914; DA 22-24, adopted January 11, 2022, and released January 11, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in Section 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See Sections 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 to read as follows:

FMCSA organizes this notice of proposed rulemaking (NPRM) as follows:

If you submit a comment, please include the docket number for this NPRM (FMCSA-2022-0001), indicate the specific section of this document to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2022-0001/document, click on this NPRM, click “Comment,” and type your comment into the text box on the following screen.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments and material received during the comment period.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to the NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of the NPRM. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket for this rulemaking.

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2022-0001X/document and choose the document to review. To view comments, click this NPRM, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

DOT solicits comments from the public to better inform its regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL 14—Federal Docket Management System (FDMS)), which can be reviewed at www.transportation.gov/privacy.

The UCR Plan and the 41 States participating in the UCR Agreement establish and collect fees from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The UCR Plan and Agreement are administered by a 15-member board of directors: 14 appointed from the participating States and the industry, plus the Deputy Administrator of FMCSA. Revenues collected are allocated to the participating States and the UCR Plan.

In accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), fee adjustments must be requested by the UCR Plan when annual revenues exceed the maximum allowed. Also, if there are excess funds after payments to the States and for administrative costs, they are retained in the UCR Plan's depository, and subsequent fees must be reduced as required by 49 U.S.C. 14504a(h)(4). These two distinct provisions are the basis for the two elements of the adjustment proposed in this rule. This NPRM proposes to reduce the annual registration fees established pursuant to the UCR Agreement for 2023 and subsequent years.

The UCR Board has estimated future period collections using an average of the collections of the past 3 closed years. It also considered that there has been no change to the administrative authorized allowance since 2020 and recommended a modest increase in the allowance.

Considering all of this, the UCR Board recommended that FMCSA adopt the fees listed below.

The changes proposed in this NPRM would reduce the fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the UCR Plan and the participating States. While each motor carrier or other entity would realize a reduced monetary burden, fees are considered by the Office of Management and Budget (OMB) Circular A-4, Regulatory Analysis as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. Therefore, transfers are not considered in the monetization of societal costs and benefits of rulemakings.

This rule proposes to adjust the annual registration fees required by the UCR Agreement established by 49 U.S.C. 14504a. The requested fee adjustments are required by 49 U.S.C. 14504a because, for registration year 2022, the total revenues collected are expected to exceed the maximum annual revenue entitlements of $107.78 million distributed to the 41 participating States plus the amount established for the administrative costs associated with the UCR Plan and Agreement. The UCR Plan submitted the requested adjustments in accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), which requires the UCR Plan to request an adjustment by the Secretary when the annual revenues exceed the maximum allowed. In addition, 49 U.S.C. 14504a(h)(4) states that any excess funds from previous registration years held by the UCR Plan in its depository, after distribution to the States and for payment of administrative costs, shall be retained “and the fees charged . . . shall be reduced by the Secretary accordingly.”

The UCR Plan is also requesting approval of a revised total revenue to be collected because of an adjustment in the amount for costs of administering the UCR Agreement. No changes in the revenue allocations to the participating States have been recommended by the UCR Plan. The revised total revenue must be approved in accordance with 49 U.S.C. 14504a(d)(7).

The Secretary also has broad rulemaking authority in 49 U.S.C. 13301(a) to carry out 49 U.S.C. 14504a, which is part of 49 U.S.C. subtitle IV, part B. Authority to administer these statutory provisions has been delegated to the FMCSA Administrator by 49 CFR 1.87(a)(2) and (7).

FMCSA issued a final rule in early 2020 establishing the current level of UCR registration fees. 85 FR 8192 (Feb. 13, 2020). The 2020 rule reflected reductions recommended by the UCR Plan in the annual registration fees the States collected from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies for the registration years beginning in 2020. This level of fees has remained in effect for registration years since 2020. The UCR Plan has recommended that these fees remain in effect during 2022 and has recommended a significant reduction to be effective for registration year 2023.

The UCR Plan's latest recommendation includes an increase in the amount of the administrative cost allowance from $4 million to $4.25 million for the 2023 registration year. The increase of $250,000 recommended by the UCR Plan was based on estimates of future administrative cost allowances needed to operate the UCR Plan and Agreement. No changes in the State revenue entitlements are recommended, and the entitlement figures for 2023 for the 41 participating States are the same as those previously approved for the years 2010 through 2022. Therefore, for registration year 2023 and subsequent registration years, the UCR Plan recommends total revenue to be collected of $112,027,060 (rounded to the nearest dollar). FMCSA proposes to approve this recommendation for the total revenue to be collected by the UCR Plan, as shown in the following table.

On August 26, 2021, the UCR Plan Board of Directors sent a letter to the Secretary of the Department of Transportation (available in the docket for this rule), stating that the Board met on August 12, 2021, and voted to approve their “2023 Fee Proposal” plan and recommend that FMCSA adopt the fee reductions therein. The letter states the justification for reducing the fees, and the attachment explains how the adjustment was determined.

FMCSA has reviewed the formal recommendation from the UCR Plan and proposes to approve the recommended adjustment in the fees, including the adjustment in the allowance for costs necessary to continue administering the UCR Agreement and the UCR Plan. Overall, the UCR Plan and the Agency agree on the reduction of the current fees for 2023 and subsequent registration years, and that there would be no change in the revenue entitlements for the 41 participating States.

Motor carriers and other entities involved in interstate and foreign transportation in the United States that do not have a principal office in the United States, are nonetheless subject to the fees for the UCR Plan. They are required to designate a participating State as a base State and pay the appropriate fees to that State (49 U.S.C. 14504a(a)(2)(B)(ii) and (f)(4)).

In this NPRM, FMCSA proposes that the provisions of 49 CFR 367.60 (which were adopted in the 2020 final rule) would be revised so that the fees in that section would apply to registration years 2020, 2021, and 2022 only. A new 49 CFR 367.70 would establish new reduced fees applicable beginning in registration year 2023. These fees would remain in effect for subsequent registration years after 2023 unless revised in the future.

FMCSA also proposes to remove 49 CFR 367.20, 367.30, 367.40, and 367.50. These sections established fees applicable for registration years from 2007 to and including 2019. The UCR Plan is no longer collecting fees for those registration years and these sections should be removed to avoid any uncertainty about the applicable fees.

FMCSA has considered the impact of this notice of proposed rulemaking under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and DOT's regulatory policies and procedures. The Office of Information and Regulatory Affairs (OIRA) within OMB determined that this notice of proposed rulemaking is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, OMB has not reviewed it under these Orders.

The changes proposed by this rule would reduce the registration fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the UCR Plan and the participating States. While each motor carrier would realize a reduced burden, fees are considered by OMB Circular A-4, Regulatory Analysis as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. By definition, transfers are not considered in the monetization of societal costs and benefits of rulemakings.

This rule would establish reductions in the annual registration fees for the UCR Plan and Agreement. The entities affected by this rule are the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Because the State UCR revenue entitlements would remain unchanged, the participating States would not be impacted by this rule. The primary impact of this rule would be a reduction in fees paid by individual motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The recommended reduction from the current 2020 registration year fees (approved by the Board on August 12, 2021) would be between $16 and $15,350 per entity, depending on the number of vehicles owned or operated by the affected entities.

Pursuant to the Congressional Review Act (5 U.S.C. 801-808), OIRA designated this rule as not a “major rule.”  1

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 2 requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term small entities comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. 5 U.S.C. 601(6). Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses.

This proposed rule would directly affect the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Under the standards of the RFA, as amended by the SBREFA, the participating States are not small entities. States are not considered small entities because they do not meet the definition of a small entity in section 601 of the RFA. Specifically, States are not considered small governmental jurisdictions under section 601(5) of the RFA, both because State government is not included among the various levels of government listed in section 601(5), and because, even if this were the case, no State or the District of Columbia has a population of less than 50,000, which is the criterion by which a governmental jurisdiction is considered small under section 601(5) of the RFA.

The Small Business Administration's (SBA) size standard for a small entity (13 CFR 121.201) differs by industry code. The entities affected by this rule fall into many different industry codes. In order to determine if this rule would have an impact on a significant number of small entities, FMCSA examined the 2017 Economic Census data  3 for two different industries, truck transportation (Subsector 484) and transit and ground transportation (Subsector 485).

According to the 2017 Economic Census, approximately 99.4 percent of truck transportation firms, and approximately 99.2 percent of transit and ground transportation firms, had annual revenue less than the SBA's revenue thresholds of $30 million and $16.5 million, respectively, to be defined as a small entity. Therefore, FMCSA has determined that this rule would impact a substantial number of small entities. However, FMCSA has determined that this rule would not have a significant impact on the affected entities. The effect of this rule would be to reduce the annual registration fee motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies are currently required to pay. The reduction will range from $16 to $15,350 per entity, depending on the number of vehicles owned and/or operated by the affected entities.

Consequently, I certify that the proposed action would not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the SBREFA small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the SBA's Small Business and Agriculture Regulatory Enforcement Ombudsman (Office of the National Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman ) and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $170 million (which is the value equivalent of $100 million in 1995, adjusted for inflation to 2020 levels) or more in any 1 year. Although this proposed rule would not result in such an expenditure, the Agency discusses the effects of this rule elsewhere in this preamble.

This proposed rule contains no new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

The Consolidated Appropriations Act, 2005, 4 requires the Agency to assess the privacy impact of a regulation that will affect the privacy of individuals. This NPRM would not require the collection of personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program.

The E-Government Act of 2002, 5 requires Federal agencies to conduct a Privacy Impact Assessment (PIA) for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a PIA.

In addition, the Agency submitted a Privacy Threshold Assessment (PTA) to evaluate the risks and effects the proposed rulemaking might have on collecting, storing, and sharing personally identifiable information. The PTA has been submitted to FMCSA's Privacy Officer for review and preliminary adjudication and to DOT's Privacy Officer for review and final adjudication.

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

FMCSA analyzed this proposed rule pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2, paragraph 6.h. The Categorical Exclusion (CE) in paragraph 6.h. covers regulations and actions taken pursuant to regulation implementing procedures to collect fees that will be charged for motor carrier registrations. The proposed requirements in this rule are covered by this CE and do not have any effect on the quality of the environment.

In consideration of the foregoing, FMCSA proposes to amend 49 CFR chapter III, part 367 to read as follows: