[Federal Register Volume 64, Number 21 (Tuesday, February 2, 1999)]
[Rules and Regulations]
[Pages 4984-4999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2408]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0, 2, 15, 25, and 68
[GEN Docket No. 98-68; FCC 98-338]
Streamlining the Equipment Authorization Process; Implementation
of Mutual Recognition Agreements and the GMPCS MOU
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission is amending the rules to provide the option of
private sector approval of equipment that currently requires an
approval by the Commission. It is also adopting rule changes to
implement a Mutual Recognition Agreement (MRA) for product approvals
with the European Community (EC), the Asia Pacific Economic Cooperation
(APEC) and to allow for similar agreements with other foreign trade
partners. These actions will eliminate the need for
[[Page 4985]]
manufacturers to wait for approval from the Commission before marketing
equipment in the United States, thereby reducing the time needed to
bring a product to market. The Commission is also adopting an interim
procedure to issue equipment approvals for Global Mobile Personal
Communication by Satellite (GMPCS) terminals prior to domestic
implementation of the GMPCS-MoU Arrangements. That action will benefit
manufacturers of GMPCS terminals by allowing greater worldwide
acceptance of their products.
DATE: Effective May 3, 1999.
FOR FURTHER INFORMATION CONTACT: Hugh L. Van Tuyl, (202) 418-7506,
Office of Engineering and Technology. For part 68 specific questions,
contact Vincent M. Paladini, (202) 418-2332, Common Carrier Bureau. For
part 25 specific questions, contact Tracey Weisler at 202-418-0744.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, GEN Docket 98-68, FCC 98-338, adopted December 17, 1998, and
released December 23, 1998. The full text of this Commission decision
is available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239) 1919 M Street, N.W., Washington,
D.C., and also may be purchased from the Commission's duplication
contractor, International Transcription Service, (202) 857-3800, 1231
20th Street, N.W. Washington, D.C. 20036.
Summary of the Report and Order
1. In this order, we adopt measures to reduce the burden of the
equipment authorization program on manufacturers, ensure market access
and promote competition in the provision of telecommunication and
electronic equipment, and allow greater worldwide acceptance of GMPCS
equipment. We address the comments filed in response to our proposals
to recognize private entities to certify equipment as complying with
Commission rules. The program we adopt will be used both to streamline
our domestic equipment approval programs and satisfy the United States'
obligations to implement MRAs.
Telecommunications Certification Bodies (TCBs)
2. In the Notice of Proposed Rule Making (``NPRM'') 63 FR 31685,
June 10, 1998, we proposed to allow designated private entities to
issue equipment approvals in essentially the same manner as the
Commission. Under this proposal, private entities in the U.S. and
designated entities in other countries would certify that equipment
intended for use within the U.S. complies with Commission requirements.
We proposed that these certifying organizations be called
``Telecommunication Certification Bodies'', or TCBs, since their
purpose will be to grant certification to telecommunications equipment.
This approach would provide manufacturers with alternatives where they
could possibly obtain certification faster than with the Commission and
from a facility in a more convenient location. We also anticipated that
the TCB program would result in a reduction of applications filed with
the Commission, thus enabling the Commission to redirect resources
toward enforcement of the rules. Finally, allowing equipment to be
certified by parties in other countries is an essential step in
implementing MRAs, and using private entities for domestic
certification purposes would parallel our MRA obligations.
3. In ET Docket 97-94, we recently examined the part 2
authorization program, relaxing the authorization requirements for many
types of equipment to permit manufacturer's self-approval (verification
or DoC). We estimate that our actions in Docket 97-94 will reduce by
approximately half the number of applications required to be filed with
us. The equipment for which we relaxed the authorization requirement
includes receivers, which is the only type of equipment that was
suggested be placed under the DoC program. We determined in Docket 97-
94 that a certain ``core group'' of equipment requires a higher level
of oversight than manufacturer's self-approval, due to a high risk of
non-compliance, the potential to create significant interference to
safety and other communication services, and the need to ensure
compliance with the requirements to protect against radio frequency
exposure. Accordingly, we decline to expand further the DoC program for
equipment subject to a part 2 authorization requirement at this time.
4. Since the NPRM did not propose to place terminal equipment
subject to the part 68 registration program under DoC, the record does
not yet contain sufficient information or analysis to ensure that it
would be fair and equitable to do so. Accordingly, we decline to expand
further the DoC program to equipment subject to part 68 registration at
this time. We may, however, consider this possibility in the context of
future proceedings where we may more fully investigate and resolve the
relevant issues.
5. By carefully specifying the qualification criteria for TCBs, as
well as exerting the proper oversight, we intend to ensure the TCB
system will be as fair and impartial as the current system. The TCB
system also may be significantly faster than the Commission's current
system, since manufacturers should have more than one approval body to
choose from and can select one with a shorter processing time. We
expect TCBs to function much like the Commission by certifying a
product based on the test results of one representative sample.
Further, competition among TCBs, as well as expectations of
manufacturers, should encourage TCBs to process applications quickly
and at reasonable expense. TCBs should provide conveniently located
expertise and ``one stop shopping'' for manufacturers, thereby
eliminating the uncertainty and delay in assembling and forwarding
applications to the Commission inherent in the current system. We also
recognize and agree with commenters that the integrity of the TCB
program must be based on our ability to enforce our rules effectively.
As we stated in the NPRM, we intend to redirect resources toward
enforcement of the rules. Further, we intend to review and revise our
rules and procedures, as necessary, to ensure that we fulfill our
responsibilities to ensure credible rule enforcement. We recognize that
there will be initial start-up problems and we plan to work with
industry and the National Institute of Standards and Technology (NIST)
to facilitate the training and implementation of TCBs. Accordingly, we
find it is in the public interest to adopt the TCB system as proposed
in the NPRM, for equipment authorized under both parts 2 and 68 of our
rules.
TCB Qualification Criteria
6. In the NPRM, we tentatively concluded that the International
Organization for Standardization (ISO) / International Electrotechnical
Commission (IEC) Guide 65 (1996), General requirements for bodies
operating product certification systems (``Guide 65''), sets forth the
requirements that must be used to establish the primary qualification
criteria for TCBs. TCB equipment certification would be based on type
testing, which is the option listed in subclause 1.2(a) of Guide 65. We
also proposed that TCBs:
Demonstrate expert knowledge of the regulations for each
product with respect to which the body seeks designation, including
knowledge of all applicable technical regulations, administrative
provisions or requirements, as well as the relevant policies and
procedures.
[[Page 4986]]
Be accredited in accordance with ISO/IEC Guide 25, General
Requirements for the Competence of Calibration and Testing Laboratories
(``Guide 25''), in order to demonstrate that they are competent to
perform testing of the products they will certify.
Have the ability to recognize when interpretations of the
rules or test procedures are necessary and demonstrate a knowledge of
how to obtain current and correct interpretations.
Participate in consultative activities identified by the
Commission to establish a common understanding and interpretation of
the regulations.
7. We find that Guide 65, an existing international standard,
establishes appropriate qualifications for product certifiers. Guide 65
will be used as the primary qualification criteria for TCBs under MRAs,
so use of this document for domestic purposes as well will facilitate
acceptance of U.S. certifications internationally, and thereby promote
U.S. trade abroad. We also find that TCBs should have the expertise and
capability to test equipment they certify, since they will either
perform measurements themselves or will use this expertise and
capability to correctly review test data from other parties and perform
audit testing as required. Thus, we also find that TCBs must be
accredited to Guide 25 to demonstrate appropriate knowledge and
capability to perform product testing. Accordingly, we require TCBs to
be both Guide 65 and 25 accredited.
8. CCL requests that the Commission recognize current accreditation
schemes for testing laboratories, such as the National Voluntary
Laboratory Accreditation Program (NVLAP) and the American Association
for Laboratory Accreditation (A2LA). Laboratories that perform testing
of equipment approved under DoC must be accredited through NVLAP, A2LA
or other parties recognized by the Commission, see 47 CFR 2.948(d).
These accreditations are based on Guide 25 and cover testing of certain
devices subject to part 15 of the rules. We find that these
accreditations would satisfy our requirement for a TCB to be Guide 25
accredited. Accordingly, a prospective TCB which is already accredited
by A2LA, NVLAP or another recognized party, based on Guide 25, will not
have to obtain another Guide 25 accreditation, provided the equipment
it certifies is covered by the scope of the accreditation.
9. We also adopt the additional qualification criteria that we
proposed, i.e., TCBs must demonstrate expert knowledge of the
regulations for each product with respect to which they seek
designation; recognize when interpretations of the rules or test
procedures are necessary and demonstrate knowledge of how to obtain
current and correct interpretations; and participate in consultative
activities identified by the Commission to establish a common
understanding and interpretation of the regulations. The MRAs, for
example, identify regulations and requirements that are applicable to
certifying equipment intended for import into the United
States.1 Since such regulations and requirements may be
modified in the future, we delegate authority to the Chief, Office of
Engineering and Technology (OET), and to the Chief, Common Carrier
Bureau (CCB), to identify specific regulations and requirements for
which TCBs certifying equipment for use within the United States shall
demonstrate expert knowledge. Both OET and CCB shall provide public
notice of the specific regulations and requirements identified for this
purpose, to ensure that prospective TCBs will know for which specific
regulations and requirements they must demonstrate expert knowledge as
required under our qualifying criteria.
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\1\ The US/EC MRA contains a non-exclusive list for
telecommunications equipment. The model APEC MRA provides that
countries will identify the relevant regulations and requirements at
the time they enter into bilateral agreements.
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10. Subcontractors. Several parties address the issue of whether
subcontractors to TCBs (e.g., test laboratories) should also be Guide
25 accredited. Under Guide 65, a TCB may use a subcontractor to perform
certain tasks (e.g., testing or inspection).2 Guide 65
further states that a TCB shall take full responsibility for
subcontracted work, and shall ``ensure that the subcontracted body or
person is competent and complies with the applicable provisions of
[Guide 65] and other standards and guides relevant to testing,
inspection or other technical activities.'' Thus, TCBs must ensure that
subcontractors, which perform their work under the direction of, and
generally with compensation from, the TCB, are competent and in
compliance. We do not interpret Guide 65 as requiring subcontractors to
be Guide 25 accredited. We expect that as a result of our requirement
that TCBs must be accredited to Guides 65 and 25, TCBs will have the
expertise to determine whether a manufacturer or independent laboratory
that is a subcontractor is competent to correctly measure the equipment
being tested. We will allow TCBs to use any reasonable means, including
requiring Guide 25 accreditation, to determine whether a subcontractor
is competent and in compliance with relevant standards or guidelines.
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\2\ See Guide 65, clause 4.4. Although a TCB might use a
subcontractor to perform certain tasks related to the certification
process, a TCB is precluded by Guide 65 from delegating to a third
party, such as a subcontractor, any authority for granting
certifications. See Guide 65, clauses 4.4(a) and 12.2.
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11. Manufacturers. Retlif, Rockwell and Kenwood request that the
Commission confirm that a manufacturer can be a TCB, provided it meets
the Guide 65 requirement for impartiality. ACIL, CCL and Intertek want
the Commission to provide a clear definition of ``independence'' for
TCBs, and propose a definition based on the language in European
Directives, which would exclude manufacturers from being TCBs.
12. Guide 65 clearly requires that the certifying body be
impartial. More specifically, clause 4.2 of Guide 65 requires that the
certifying body ``not supply or design products of the type it
certifies,'' nor ``provide any product or service which could
compromise the confidentiality, objectivity or impartiality of the
certification process and decisions.'' We interpret these guidelines to
effectively preclude manufacturers from becoming TCBs. Thus, we do not
find it necessary to adopt a specific definition of independence in
order to preclude manufacturers from TCB designation. On the other
hand, we find Guide 65 less restrictive regarding subcontractors.
Clause 4.4 of Guide 65 states that the certifying body is to ensure
that the subcontractor ``is not involved either directly or through the
person's employer with the design or production of the product in such
a way that impartiality would be compromised.'' Thus, manufacturers
satisfying the conditions of clause 4.4 of Guide 65 could be used as
subcontractors, provided the TCB is satisfied that its own impartiality
would not be compromised. Since the TCB is the party whose impartiality
must be maintained, the TCB is in the best position to determine
whether the use of a particular subcontractor would in any way
jeopardize that requirement. We expect, nonetheless, that a
manufacturer would not be used as a subcontractor to test its own
products or similar products made by a competing manufacturer.
Designation Procedure
13. The NPRM proposed that TCBs be accredited by NIST under its
National Voluntary Conformity Assessment System Evaluation (NVCASE)
program. In accordance with our proposal, we
[[Page 4987]]
designate NIST as the entity with primary responsibility for
accrediting TCBs. NIST may directly accredit TCBs or may, in
consultation with the Commission, designate additional accreditation
bodies who will, in turn, accredit TCBs. We will work directly with
NIST to develop the many administrative details of the criteria and
processes for accreditation of TCBs. The Commission will identify for
NIST, for example, the specific types of tests that need to be done for
telecommunications equipment and the types of measurements that should
be done to demonstrate compliance with our rules; identify processes
that TCBs will use to obtain current and correct interpretations of
rules or test procedures; and identify consultative activities
requiring TCB participation. The Commission will provide public notice
of the methods that NIST will use to accredit TCBs consistent with the
qualification criteria adopted herein.
14. We will designate as a TCB any organization that meets the
qualification criteria and is accredited by NIST or its recognized
accreditor. An organization may seek accreditation and designation as a
TCB for all or only some equipment requiring authorization under parts
2 and 68. The Commission will issue a public notice listing each
accredited entity that it designates as a TCB and maintain a current
list of all designated TCBs. We will not limit the number of TCBs that
will be designated, nor will we limit the time period during which an
organization must be accredited and designated. We will not require
periodic renewals of a TCB designation, but we note that under
international standards, accreditations are only valid for a specific
number of years. The Commission will withdraw the designation of a TCB
if the TCB's accreditation by NIST or its recognized accreditor is
withdrawn or expires, if the Commission otherwise determines there is
just cause for withdrawing the designation, or if the TCB requests that
it no longer hold the designation. The Commission will provide a TCB
with 30 days notice of its intention to withdraw TCB designation and
provide the TCB with an opportunity to respond. Withdrawal of
designation will be announced by public notice.
15. There are many details of the qualification and accreditation
process that remain to be worked out between the Commission and NIST.
Therefore, we delegate authority to the Chief, OET and the Chief, CCB
to identify the specific methods that will be used by NIST to accredit
TCBs, consistent with the qualification criteria adopted herein, and to
enter into a memorandum of understanding with NIST on the accreditation
process for TCBs. We also delegate authority to the Chief, OET and the
Chief, CCB to designate and withdraw the designation of TCBs,
consistent with the terms of this Report and Order.
Implementation Matters
16. In the NPRM, we proposed to allow TCBs to certify equipment
under parts 2 and 68 of our rules, performing the same application
processing functions as used by the Commission. In particular, the
following requirements were proposed for TCBs.
(a) Certification must be based on the submittal to the TCB of an
application that contains all the information required under the
Commission's rules.
(b) TCBs will be required to issue a written grant of
certification.
(c) The grantee of certification will remain the party responsible
to the Commission for compliance of the product.
(d) The type testing as defined in Guide 65 should normally be done
on only one unmodified sample of the equipment for which approval is
sought.
(e) There is no restriction on the fees that TCBs may charge for
certification.
(f) TCBs may either perform the required compliance testing
themselves, or may accept and review the test data from manufacturers
or other laboratories. TCBs may also subcontract with others to perform
the testing. However, the TCB remains responsible for ensuring that the
tests were performed as required and in this regard TCBs are expected
to perform periodic audits to ensure that the data they may receive
from others is indeed reliable.
(g) Equipment certified by a TCB must meet all the Commission's
labelling requirements, including the use of an FCC Identifier.
(h) TCBs must submit an electronic copy of each granted application
to the Commission using the new electronic filing system for equipment
authorization applications. This will allow us to easily verify whether
a piece of equipment has been approved without having to locate the TCB
which approved it and obtain the records. It will also allow us to
monitor the activities of the TCBs to determine how many approvals are
issued and for what types of equipment. Finally, this would create a
common database that all parties can use to verify approvals and obtain
copies of applications. Where appropriate, the file should be
accompanied by a request for confidentiality for any material that
qualifies as trade secrets.
(i) TCBs may approve requests for permissive changes to certified
equipment, irrespective of who originally certified the equipment.
(j) TCBs must periodically perform audits of equipment on the
market that they have certified to ensure continued compliance.
17. In the NPRM, we tentatively concluded that some functions not
be performed by TCBs but, rather, by the Commission. In particular, we
tentatively concluded that TCBs not grant waivers of Commission rules
and regulations; not certify new or unique equipment for which
Commission rules or requirements do not exist or for which application
of the rules or requirements is not clear; not take enforcement action
but rather report rule violations to the Commission; and not grant
transfers of control or assignments of certifications. Finally, we
proposed that any action of a TCB be subject to review by the
Commission.
18. Commenters were generally supportive of the implementation
requirements. Some specific concerns were expressed. In light of the
comments, we adopt these requirements as modified and clarified below.
19. Scope of responsibility. Consistent with section 302(e) of the
Communications Act, as well as the terms of the MRAs, we will use TCBs
to test and certify equipment as complying with our technical rules and
requirements. Under this authority, TCBs are to certify equipment in
accordance with Commission rules and policies. It is important that
applicants are treated fairly and equitably regardless of where their
equipment is certified, since a certification granted by a TCB will be
treated the same as one issued by the Commission. In that regard,
should equipment manufacturers take issue with a TCB's decision, they
may seek Commission review of such decision. Thus, TCBs are not to
impose their own requirements, and must conform their testing and
certification processes and procedures to comply with any changes the
Commission makes in its rules and requirements. We recognize that
changes to the Commission's technical rules may require TCBs to be re-
accredited in order to continue to be qualified to test and certify
certain equipment. Finally, we anticipate that TCBs will test and
certify a broad range of equipment, and we do not intend to preclude
TCBs from certifying any class of equipment at this time. We would,
however, only designate a TCB to test and certify equipment requiring
routine evaluation for RF exposure if it demonstrates that it has the
appropriate
[[Page 4988]]
knowledge and expertise. Any concerns that TCBs may have about specific
test procedures for RF exposure will be addressed by the Office of
Engineering and Technology during the TCB program implementation.
20. Although we intend to use TCBs to certify a broad range of
equipment, we find that certain functions regarding certifying
equipment should continue to be performed by the Commission.
Specifically, TCBs will not be permitted to waive the rules, nor to
certify new or unique equipment for which Commission rules or
requirements do not exist or for which application of the rules or
requirements is not clear. The Commission in the first instance will
determine whether and under what conditions rules may be waived, and
provide interpretations of novel issues concerning the Commission's
technical standards, testing requirements or certification procedures.
We expect that in many instances the Commission's decisions can provide
adequate guidance to TCBs to allow them to certify equipment that is
similarly situated. In some instances, the Commission may have to
develop new rules. We find that by reserving for the Commission all
waiver requests and new and novel rule applications and
interpretations, we can ensure that all TCBs will certify equipment in
a uniform manner, consistent with Commission policies.
21. We also conclude that TCBs should not take any enforcement
actions, but rather report apparent violations of rules to the
Commission. Enforcement actions that the Commission may undertake
include, for example, revocation of an authorization and imposing a
fine and forfeiture. Neither section 302(e) of the Communications Act
of 1934, as amended, nor the MRAs contemplate using TCBs as enforcement
agents. Moreover, the Commission has specific statutory obligations
that it must satisfy in this area.3
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\3\ See, e.g., Title V of the Communications Act.
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22. We will not permit TCBs to authorize transfers of control of
part 2 grants of certification, however, because the Commission's rule
on these transfers requires that we make a determination on a case-by-
case basis as to whether new equipment authorization applications are
required.4 We will continue to perform that function to
ensure that the rule is applied in a consistent manner. We determine,
however, that TCBs may authorize transfers of part 68 certifications.
Commission approval of such transfers is not required, although the
Commission requires notification of such transfers.5 We
intend to develop an electronic filing system to accommodate part 68.
We expect that the electronic filing system will permit TCBs to notify
the Commission of transfers of control. In the interim, we will accept
part 68 transfers of control by utilizing the same means of
communication we employ during the TCB program implementation
period.6
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\4\ See 47 CFR 2.929(d).
\5\ See 47 CFR 68.214(b).
\6\ We will accept FCC form 730 for transfer of control purposes
until we have developed and implemented an electronic filing system
for part 68. We may utilize interim filing procedures as necessary
during the development and implementation of the electronic filing
system. We will provide public notice of any changes in our filing
procedures.
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23. Written grant of certification. Several parties would like the
Commission to ensure that grants issued by TCBs are exactly equivalent
to grants issued by the FCC. ACIL, Intertek and TIA suggest that TCB-
issued grants indicate that the TCB is FCC designated, and that the FCC
publish the list of TCBs under its letterhead. Motorola and PCTEST
recommend that the FCC standardize the format of TCB grants. We find
that the first two suggestions have merit. We believe the success of
the TCB program will depend in part on our ensuring that TCB
certifications are truly equivalent to those issued by the Commission.
Accordingly, we will require a TCB grant to indicate that the TCB is
designated to grant the certification, citing the source of authority
(e.g., the rules that we are adopting in this Report and Order). We
will not require a specific format for TCB grants, but the
certification must include the same information as contained in one
issued by the Commission. We will make samples of the Commission's
format available to TCBs that wish to follow it.
24. Consistent with the Commission's rules,7 a TCB may
set aside a grant on its own motion within 30 days of the effective
date of the grant in the event of administrative errors, e.g., the
application was not complete. The TCB will be required to provide
notice of such action to the applicant and to the Commission. After the
30 day period, only the Commission may revoke a grant if, for example,
we discover misrepresentations in the application or failure of the
equipment to conform to the applicable technical standards.8
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\7\ See 47 CFR 1.108.
\8\ See 47 CFR 2.939(a).
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25. Unmodified sample for type testing. Curtis-Strauss requests
clarification on what constitutes an ``unmodified'' sample for testing.
Curtis-Strauss points out that manufacturers often apply for
certification during product development, and product modifications are
often needed for compliance. In proposing this requirement, we intended
that TCBs use the same standards that we currently use in certifying
equipment (i.e., the sample of the equipment for which certification is
being obtained must be representative of what will actually be
marketed). In the event modifications to a sample are required during
compliance testing 9 to make a product comply with the
standards, those modifications must be incorporated into the finished
marketed product.10
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\9\ ``Compliance testing'' and ``type testing'' mean the same
thing.
\10\ See 47 CFR 2.907(b) (equipment marketed by a grantee must
be identical to the sample tested).
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26. Test data. Some commenters express concern that TCBs will not
accept test data from manufacturers or independent labs, preferring
instead to conduct compliance testing themselves. Under the
Commission's current certification process, manufacturers and
independent laboratories may test products and submit applications to
the Commission for certification. Under the TCB system we are adopting,
manufacturers and independent labs may continue to test products as
they do now, except applications can be submitted to a TCB rather than
the Commission.11 Thus, a manufacturer or a test lab does
not have to be a subcontractor in order to test products and submit
applications to a TCB. We agree with Motorola that a TCB will want a
manufacturer to demonstrate a basis for confidence in the
manufacturer's test procedures and results. Consistent with our
decision regarding subcontractor's competence, a TCB can establish
confidence in a manufacturer's or independent lab's test results by any
reasonable means, but we will not require accreditation of the test lab
under Guide 25. We expect that a TCB will examine a test report for
completeness of data and documentation; notify applicants in writing of
any deficiencies in the test report; request additional information to
address the deficiencies; and not retest or duplicate testing for minor
equipment changes that do not affect compliance with technical
requirements. Our oversight of TCBs should identify any abusive
practices concerning the acceptance of test data.
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\11\ A TCB is required to make its services available to all
applicants. See clause 4.1.2 of Guide 65.
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27. Common Database of Certified Equipment. We conclude that it is
necessary to maintain a common
[[Page 4989]]
database of certified equipment by having all TCBs send an electronic
copy of each granted application, including the certification the TCB
issued, to the Commission using the electronic filing system for part 2
applications. As we explained in the NPRM, a common database will allow
the Commission to verify whether a piece of equipment was approved
without having to locate the TCB that approved it and obtaining their
records; to monitor the activities of TCBs to determine how many
approvals are issued and for what types of equipment; and to provide
one location which all parties can use to verify approvals and obtain
copies of applications. However, requiring submission of a copy of the
complete application to the database, including all the photographs,
user manuals and test reports would be an unnecessary burden on TCBs.
We will only require submission of the application Form 731 and an
electronic copy of the TCB's grant of equipment authorization. In the
event we need additional information about a particular piece of
equipment, we can obtain it from the TCB. We are amending our rules to
require TCBs to provide a copy of the application file within 30 days
of a request by the Commission, or to provide an explanation as to why
the file cannot be provided. Where appropriate, the TCB will provide a
copy of any request for confidentiality for any material in the
application file that qualifies as trade secrets, to ensure appropriate
handling. OET will notify TCBs of the specific information it will need
about a TCB grant and in what electronic format it should be provided.
28. We recognize that we have not yet developed an electronic
filing system to accommodate part 68, but intend to do so in the
future. We will utilize conventional means for collecting information
in the interim.12 We will authorize submission of part 68
certification information into a common database, and describe the
information that must be filed for part 68 purposes, after we have
developed an electronic filing system to accommodate that information.
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\12\ We will accept FCC form 730 during the development and
implementation of the electronic filing system.
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29. Surveillance Activities. ISO/IEC Guide 65 requires TCBs to
perform surveillance on products they have approved. It does not
specify the number or percentage of products that need to be examined.
The Commission will continue to perform its own surveillance of
products on the market, by periodically conducting random product
testing as well as by investigating allegations of non-compliance.
However, we find that surveillance is an appropriate activity for TCBs
to supplement the Commission's efforts. Under clause 13 of Guide 65, a
TCB is obligated to ensure that products that it has certified continue
to comply with Commission requirements, particularly after a
manufacturer notifies a TCB that the product has been modified. We will
not specify a specific number or percentage of products that a TCB
should test to satisfy this guideline, since our experience has shown
that different levels of scrutiny are required for different products
to ensure compliance.13 We will rely on TCBs to use their
judgment in complying with this guideline. In addition, we may
periodically require a TCB to test for continued compliance certain
types of products that the TCB certified and which are already being
marketed (post-market surveillance). We do not view post-market
surveillance by TCBs as an abdication of our enforcement
responsibilities, since the TCB will report apparent violations to the
Commission and not take action on its own against the manufacturer. To
ensure that TCBs conduct audits impartially, the Commission will devise
procedures that TCBs will use for post-market surveillance, and we
delegate authority to the Chief, OET and the Chief, CCB to develop
procedures that TCBs will use for conducting post-market surveillance.
These procedures will address, for example, conducting field audits or
acquiring samples for testing. The TCB will test the products under the
Commission guidelines and report the results to us. TCBs will be able
to check the Commission's common database, described above, to avoid
reporting as non-compliant products that actually were subsequently re-
certified by another TCB. By using the TCBs to conduct audits, the
Commission will be able to secure information quickly from a variety of
sources about ongoing compliance, while focusing its own resources on
investigating specific problem cases. Based on the TCBs' reports, the
Commission may conduct further investigations and take appropriate
enforcement action against companies found to be marketing non-
compliant products. The Commission will also continue to perform post-
market surveillance in cases where we deem it warranted, and to audit
the performance of TCBs. These actions will help ensure that TCBs act
in a fair, impartial manner. We expect that TCBs will take the cost of
post-market surveillance into account when setting their fees. As
previously stated, we are not regulating the fees that TCBs charge, but
we expect that competitive pressures in the market will prevent a TCB
from charging excessive fees.
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\13\ For example, low-power, unlicensed transmitters such as
cordless telephones and baby monitors have frequently been a source
of compliance problems because of pressures in the marketplace to
build them as cheaply as possible, or to increase their operating
range by increasing their transmitter power above the legal limit.
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30. Consultative Activities. Several parties suggest that the
Commission develop a joint public-private sector working group to
address implementation issues as they arise. Commenters recommend that
this working group include all interested parties, such as TCBs, test
labs and manufacturers. We refrain from establishing a new formal
organization at this time, and choose to rely instead on existing
voluntary industry consensus groups. For example, for part 68 issues,
we intend to continue our cooperative association with TIA's TR.41
committees. Moreover, we intend to work with all interested parties to
implement the TCB program and to ensure its success.
Continued Certification by the Commission
31. We solicited comments on whether the Commission should
eventually stop certifying equipment once TCBs are designated. We
received mixed comments on this issue. Our goal in this proceeding is
to discontinue granting routine, non-controversial applications under
parts 2 and 68 of our rules when TCBs are available to perform the
work, but we do not at this time set a date when the Commission will
cease to issue authorizations. We conclude that the Commission should
continue approving equipment, including processing routine
applications, during the implementation of the TCB program. This will
help smooth the transition to the new system and ensure that at least
one organization is available to certify all types of equipment. After
we have some experience with the new system, we will assess the
effectiveness of the TCB program and determine when the Commission
should discontinue approving products. After the TCB program is
initiated, however, the Commission will continue to be the authorizing
body if no TCB is available to authorize a given type of equipment and
to process applications raising novel issues regarding application of
our rules.
[[Page 4990]]
32. We conclude that it is unnecessary for the Commission to
continue approving certification applications for personal computers
and peripherals, since that equipment can be authorized through the DoC
procedure. We find that processing these voluntarily filed applications
is not an efficient use of the Commission's resources. Accordingly,
once domestic TCBs are available to process applications for personal
computer equipment for those applicants who choose to use the
certification process rather than DoC, the Commission will stop
accepting these applications a reasonable time thereafter. The
Commission will announce by public notice when it will cease to accept
these applications. We amend Sec. 15.101 of the rules to reflect this
change.
Implementation Dates and Transition Periods
33. We proposed that a transition period of 24 months elapse before
any TCBs would be allowed to certify equipment. This time period was
proposed because it is similar to the provision of the US/EC MRA, which
specifies a 24 month transition period after the MRA effective date, so
that countries have time to modify requirements and procedures to meet
the MRA's obligations. Some commenters suggest that a transition period
be no more than 24 months, and perhaps less. Upon further
consideration, we do not find it necessary to delay the introduction of
the TCB system for a 24 month period, and we would rather implement the
TCB system as soon as practicable. Nonetheless, we cannot implement the
TCB system immediately because of a number of tasks which need to be
completed first. For example, we need to specify the documentation
necessary to meet the qualification criteria for TCBs, as discussed
above, and we need to develop with NIST the accreditation and
designation procedures. Although we will immediately begin taking the
necessary steps to implement the TCB system, we recognize that it is
difficult to specify a fixed date when TCBs will begin to certify
equipment. We also conclude that a fixed date would not serve the
ongoing accreditation and implementation processes. For example, TCBs
may be identified readily for some equipment, but not for others,
accreditation compliance dates may vary, and TCBs can enter and exit
the system at different times. Thus, we conclude that we will authorize
the use of TCBs as they are designated by the Chief, OET and the Chief,
CCB in a public notice.
Part 68 Issues
34. Terminology. In the NPRM, we discussed the use of the terms
``certification'' and ``registration'' as they apply to the part 68
program. Commenters suggest that the two terms are functional
equivalents, and recommend that we expand our use of the term
``certification'' to include our part 68 program. Commenters point out
that such usage would be consistent with various other parts of the
Federal Register, the norms of international terminology, and
specifically the language of the MRAs. We agree with commenters that
the use of common terminology benefit clarity and consistency, and
determine that the terms ``registration'' and ``certification'' are
equivalent for the purposes of our part 68 rules. To the extent
practicable, we will implement this change in the course of future rule
makings and administrative actions affecting part 68.
35. FCC Form 730. The part 68 program currently utilizes FCC Form
730 to transmit information from test labs and manufacturers to the
Commission. In the NPRM, we sought comment on whether we could utilize
that form to transmit test data to the Commission from TCB candidates
during the transition period. Although commenters support the use of a
common format for recording and transmitting information among TCBs and
the Commission, they do not support the use of FCC Form 730 for this
purpose. We agree that FCC Form 730 is not the optimal format for use
among TCBs and the Commission, intend to develop an electronic filing
system and common database to fulfill that purpose. In the mean time,
however, we find that it would be a waste of resources to create an
interim solution. Thus, we determine that we will utilize FCC Form 730
as the initial information transmission format for the purposes of
implementing the TCB program. We will, however, update this requirement
pursuant to further TCB program implementation activities.
Mutual Recognition Agreements (MRAs)
United States/European Community MRA
36. The Office of the United States Trade Representative and the
Department of Commerce have participated in negotiations over the past
several years to develop a mutual recognition agreement for product
approvals with the European Community (EC). The Commission has also
participated in these negotiations, as have industry representatives
from both the United States and Europe. These negotiations culminated
on June 21, 1997 when the US/EC MRA was finalized by the United States
Trade Representative and a representative of the European Community.
The Agreement was signed on May 18, 1998, and entered into force on
December 1, 1998.
37. The US/EC MRA addresses conformity assessment activities in six
industrial sectors: telecommunications equipment, electromagnetic
compatibility, electrical safety, recreational craft, pharmaceutical
good manufacturing practice, and medical devices. The Commission's
regulations apply directly to two industry sectors, telecommunications
equipment and electromagnetic compatibility (``EMC''), among the six
specifically addressed by the US/EC MRA. The telecommunications sector
addresses terminal equipment covered by part 68 of the rules, and
transmitters covered by part 2 and other parts of the Commission's
rules. The EMC sector applies to equipment addressed by parts 15 and 18
of the Commission's rules.14
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\14\ See 47 CFR 2, 15, 18, and 68.
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38. Under the US/EC MRA, products can be tested and certified in
the United States for conformance with EC member states' technical
requirements. The certified products may be shipped directly to Europe
without any further testing or certification. In return, the MRA
obligates the United States to permit parties in Europe to test and
authorize equipment based on the United States technical requirements.
The US/EC MRA thereby promotes bilateral market access and competition
in the provision of telecommunications products and electronic
equipment. The US/EC MRA also will reduce industry burdens and delays
caused by testing and approval requirements for products marketed in
the United States and Europe.
39. The US/EC MRA provides a 24 month transitional period that will
be used to implement the regulatory or legislative changes necessary
for both parties to implement the US/EC MRA. The period began on the
effective date of the MRA, which is December 1, 1998. At the end of the
transition period, the parties should be prepared for full mutual
recognition of product certifications and registrations. To ensure
parity between U.S. and EC manufacturers, we will not permit parties in
an EC country to test and approve products to U.S. requirements until
that country permits U.S. parties to test and approve products to its
requirements.
[[Page 4991]]
Asia-Pacific Economic Cooperation (APEC) MRA
40. The Office of the United States Trade Representative, at the
request of the United States telecommunication industry, has negotiated
a Mutual Recognition Arrangement (MRA) for Conformity Assessment for
Telecommunication products in the Asia-Pacific Economic Cooperation
(APEC), which is intended to facilitate trade in telecommunications and
radio equipment among the APEC economies. APEC is a trade cooperative
of twenty-one economies along the Pacific Rim. Commission staff and
representatives of the United States telecommunications industry have
been participating in a Task Force Group under the Telecom Working
Group of APEC, which was established in March, 1997 to facilitate the
development of the APEC Telecom MRA.
41. The text of the model APEC Telecom MRA was finalized on April
30, 1998 and was endorsed at the APEC Ministerial Meeting on June 5,
1998. Unlike the US/EC MRA, the APEC Telecom MRA is a voluntary model
agreement. To enact the agreement, each APEC member economy must adopt
the agreement with each of its APEC trade partners, such as the United
States, through a bilateral exchange of letters. Participation in the
APEC Telecom MRA is voluntary; however, if a member economy chooses to
participate, the model text becomes the governing document for
conformity assessment between the participating member economies. The
MRA is expected to take effect on July 1, 1999, although individual
parties may agree to apply it bilaterally before that date. The key
elements of the APEC Telecom MRA text are substantially similar to the
key elements of the US/EC MRA text, with the following exceptions: the
APEC Telecom MRA has specific designation procedures for conformity
assessment bodies (CABs); when parties agree to participate in
activities with one another, the transition period will normally be
twelve months from the date of mutual agreement; and implementation
occurs in two phases--the first for accepting test results and the
second for accepting product approvals. As in the case of the US/EC
MRA, we will not permit parties in an APEC member economy to test and
approve products to U.S. requirements unless that member economy
permits parties in the U.S. to test and approve products to its
requirements. We adopt the tentative conclusion in the NPRM that the
rules proposed in this proceeding to implement the US/EC MRA are
sufficient to implement the APEC Telecom MRA.
Other MRAs
42. We anticipate that the United States may develop or participate
in additional mutual recognition agreements that involve other regions
of the world. For example, the Interamerican Telecommunications
Committee (CITEL) of the Organization of American States is considering
developing an MRA for the Americas region.
Designation of TCBs for Equipment Imported Into the United States
43. The NPRM proposed to amend our rules as required to permit
parties in MRA partner economies to certify radio frequency devices for
conformance with parts 2, 15, 18 and other rule parts and to test and
certify telecommunications equipment for conformance with part 68. We
proposed that these privileges should only be granted subject to the
terms and conditions specified in the MRA. No parties disagreed with
this proposal. Accordingly, we are amending parts 2 and 68 of our rules
to allow parties in MRA partner economies to certify equipment under
applicable MRA terms and conditions.
44. In accordance with the US/EC and APEC MRAs, the United States
and each MRA partner will identify a ``Designating Authority'' in its
territory. A Designating Authority is a body with power to designate,
monitor, suspend, remove suspension of or withdraw conformity
assessment bodies (CABs) in accordance with the MRAs. The Designating
Authorities must meet the requirements of ISO/IEC Guide 61. Designating
Authorities will in turn designate CABs, also within each country's
territory, that will be empowered to approve products for conformity
with the technical requirements of countries to which the equipment is
exported. As used in the APEC and US/EC MRAs, ``conformity assessment
body'' is a general term that refers to a body, which may include a
third party testing laboratory or a certification body, that performs
conformity assessment to specific technical regulations. Consequently,
the MRAs cover two types of product approvals under the Commission's
rules: certification, which is approval granted by a certification
body, such as a TCB, and declaration of conformity, which requires
product testing by an accredited testing laboratory.15 The
MRAs state that the designation of CABs is based on international
standards, specifically ISO/IEC Guides 65 and 25.
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\15\ See 47 CFR 2.948(d). Laboratories that perform testing for
a declaration of conformity must be Guide 25 accredited. The
accreditation of laboratories located outside the U.S. is acceptable
only if (1) there is an MRA between that country and the U.S., and
the laboratory is covered by the agreement; (2) there is an
agreement between accrediting bodies that permits similar
accreditation of U.S. facilities to perform testing for products
marketed in that country; or (3) the country already accepts the
accreditation of U.S. laboratories.
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45. Because CABs in exporting countries will be certifying
equipment for import into the United States, we expect that those CABs
will follow all relevant Commission requirements for certification,
including those requirements adopted in the Report and Order. Thus,
CABs will follow the implementation guidelines discussed. The MRAs
contain provisions to remove the designation of foreign certifiers that
do not comply with the applicable requirements. Those provisions are
discussed below.
Designation of TCBs for Equipment Exported From the United States
46. The US/EC and APEC MRAs identify the Designating Authorities
for the United States as NIST and the Federal Communications
Commission. NIST will designate conformity assessment bodies, such as
TCBs, in the United States for equipment that will be exported through
its National Voluntary Conformity Assessment System Evaluation (NVCASE)
program. NIST will oversee the United States conformity assessment
bodies on an ongoing basis to ensure that they are performing in a
satisfactory manner. We stated in the NPRM that it would be unnecessary
for the Commission to play a direct role in designating or supervising
TCBs with respect to equipment being exported. However, the Commission
would provide assistance and guidance to NIST as may be necessary. For
example, if questions arise as to the performance of a United States-
based CAB, the Commission would make its expertise in testing and
measurements available as needed to resolve such matters.
47. We adopt the approach described in the NPRM for designating
conformity assessment bodies, such as TCBs, in the United States for
equipment that will be exported to countries pursuant to MRAs. TCBs
designated to certify equipment for export to a specific country shall
meet the qualification criteria specified in the relevant MRA. We
conclude that NIST has sufficient resources and experience to assume
responsibility for designating and overseeing the performance of TCBs
certifying equipment for export, in
[[Page 4992]]
conformance with MRA obligations. Thus, the Commission will not perform
designation and oversight functions for TCBs certifying equipment for
export, but will provide assistance and guidance to NIST as necessary.
48. We received several comments on the MRA provisions for
equipment being exported from the United States. Some of the concerns
raised are already addressed by provisions of the MRAs. For example,
the EC requirements for telecommunications equipment are covered by
three separate directives--EMC, Low Voltage and Telephone Terminal
Equipment (TTE) Directives. Each directive has distinct conformity
assessment requirements. Under the EMC Directive most equipment is
subject to supplier's declaration, except that when standards are not
harmonized within the EC or the equipment is too large for remote
testing, the supplier must use what is called the Technical
Construction File (TCF) route to market, requiring the use of a CAB
called a Competent Body. NIST will be able to designate a U.S. entity
to serve as a Competent Body, provided the entity is accredited to
Guide 25 and meets the appropriate technical requirements in the EMC
Directive. Radio transmitters and telephone terminal equipment subject
to the TTE Directive, which is the most frequently used route to
market, must be approved by a CAB called a Notified Body, which is
accredited to Guide 65. In either case, NIST will accredit and
designate the U.S. TCBs to the appropriate directives. Under the MRAs,
parties are to accept test results and product certifications prepared
by CABs in other countries. The APEC MRA, for example, clarifies that
an importing party is to accept test reports on terms no less favorable
than those it accords to those produced by its own CABs and that re-
testing or duplicate testing is to be avoided. Because technical
standards vary by country, a U.S. CAB may be found qualified to certify
equipment intended for export to some countries but not others. The US/
EC MRA, for example, does not require that CABs in this country be
capable of approving equipment to all of the EC member states
requirements, and we find no basis for imposing such a requirement. We
expect that CABs will be able to provide certification for multiple
countries because manufacturers will expect this level of service from
CABs.
Administration of the MRAs
49. The US/EC MRA provides for oversight of implementation by a
Joint Committee and Joint Sectorial Committees (``JSC''). The MRA
provides that Commission representatives will participate in both
committees for the United States with regard to telecommunications
equipment and electromagnetic compatibility sectors. The APEC MRA has
similar provisions for a Joint Committee consisting of representatives
of each party, with subcommittees including persons from the business/
private sector. We conclude that Commission participation in the Joint
Committees and JSCs will be important to ensure the successful
administration and implementation of the US/EC and APEC MRAs. For
example, the Commission may serve as an independent authority to
evaluate claims of performance deficiencies by United States TCBs or
the noncompliance of specific equipment with European technical
requirements.
50. With regard to ensuring the ongoing compliance of TCBs, the US/
EC MRA provides that if a particular TCB does not appear to be
performing satisfactorily, the Commission may request that the
noncompliant TCB take corrective actions. The Commission may also
present appropriate evidence to the JSCs and/or Joint Committee and
request removal of the TCB from the list of designated Certification
Bodies. The APEC MRA also has provisions for contesting a TCB's
technical competence, and provides a framework to limit or remove the
recognition of TCBs when necessary. The Commission shall consult with
the Office of the United States Trade Representative (USTR), as
necessary, concerning any disputes that arise under an
MRA.16
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\16\ See the Telecommunications Trade Act of 1988 (Section 1371-
1382 of the Omnibus Trade and Competitiveness Act of 1988). Section
1377 requires the USTR to conduct a review to determine whether any
act, policy, or practice of a foreign country that has entered into
a telecommunications-related agreement with the U.S. (1) is not in
compliance with the terms of the agreement; or (2) otherwise denies,
within the context of the agreement, mutually advantageous market
opportunities to telecommunications products and services of U.S.
firms in that country.
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Global Mobile Personal Communications by Satellite (GMPCS)
51. The NPRM proposed to adopt an interim equipment authorization
procedure for GMPCS terminals prior to full implementation of the GMPCS
Arrangements. The Commission will be undertaking a separate proceeding
to propose rules to implement fully the GMPCS Arrangements. Because one
GMPCS operator was providing service prior to the NPRM and another
system was scheduled to commence service before final rules
implementing the Arrangements could be adopted, we proposed a set of
interim standards under which applicants could request equipment
certification. We believe that certification of GMPCS terminals will be
a major benefit to the global satellite industry. A Commission
equipment authorization, and the subsequent placement of the ``GMPCS-
MoU ITU Registry'' mark on the terminals, would potentially be
recognized by many foreign countries as sufficient to allow the
equipment to transit borders more easily and without additional type
approvals, equipment testing, or imposition of fees or delay for the
user.
52. The NPRM proposed a voluntary equipment authorization procedure
that would apply to GMPCS terminals as defined by the 1996 World
Telecommunications Policy Forum held under the auspices of the ITU. The
terminals would be certified in accordance with the requirements in
parts 1, 2 and 25 of the rules.17 In addition, we proposed
that terminals operating in the 1610-1626.5 MHz band would also have to
meet the out-of-band emission limits recommended for implementation by
the year 2000 by the National Telecommunications and Information
Administration (NTIA) in their September 1997 petition for rule
making.18
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\17\ See 47 CFR, 1, 2 and 25. Part 25 contains the technical
requirements for satellite communications. Part 1 contains the
requirements for RF safety, and part 2 contains the equipment
authorization requirements.
\18\ See RM-9165.
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53. A number of parties expressed concern about the out-of-band
emission limits proposed. LSC, Raytheon and the GPS Council state that
the proposed NTIA limits are not stringent enough to protect GPS and
GLONASS. However, AMSC and CCI state that the NTIA limits are too
stringent. CCI objects to the fact that they have not been adopted
through a rule making. Moreover, MCHI believes that the Commission
should wait to approve equipment until final standards are adopted,
since there may be difficulties in recalling or retrofitting
noncompliant equipment if the final standards adopted are more
stringent than the interim ones. TIA in their comments, and Globalstar/
Airtouch, Iridium, MCHI, Motorola and ORBCOMM in their reply comments,
all state that the issue of out-of-band limits should be addressed in a
separate rule-making proceeding.
54. In addition to uniform support expressed for the Commission's
intention to rapidly implement the GMPCS-MoU Arrangements, we also
received comments concerning other issues related to the interim GMPCS
equipment certification. Primary among these was an indication by
several
[[Page 4993]]
parties that the Commission was limiting the interim authorization
procedure to ``Big Leos'' 19 in the NPRM. Final Analysis,
ICO, Lockheed, ORBCOMM and Iridium all state that the interim
authorization procedure should apply to other mobile satellite
terminals.
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\19\ ``Big Leo'' systems provide voice and data Mobile-Satellite
Service via a constellation of one or more non-geostationary orbit
satellites operating in the band of 1610-1626.5 MHz.
---------------------------------------------------------------------------
55. In the NPRM, we specifically proposed to apply an interim
procedure for certifying all GMPCS-related terminal equipment where we
have authorized service and which demonstrates compliance with the
Commission's relevant parts 1 and 25 standards, including emission
limits for ``Little Leos'' 20 contained in 25.202(f). In
light of the comments, we adopt the voluntary interim procedures for
all GMPCS terminal equipment.
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\20\ ``Little Leo'' systems provide data-only Mobile-Satellite
Service via a constellation of non-geostationary orbit satellites
operating below 1 GHz.
---------------------------------------------------------------------------
56. For terminals operating in the 1610-1626.5 MHz band, we
proposed to add a requirement that the out-of-band emission limit of -
70 dBW/MHz averaged over any 20 millisecond period for wide band
emissions occurring between 1559-1605 MHz and -80 dBW/700 Hz for narrow
band emissions occurring between 1559-1605 MHz would also need to be
met. We find that, for the following reasons, use of the proposed out-
of-band emission standards for terminals operating in the 1610-1626.5
MHz band will facilitate the authorization process for this equipment.
First, the International Telecommunication Union's Radio Sector (ITU-R)
Study Group WP 8D has adopted the proposed wideband standard as a
recommendation for suppression of spurious emissions for MSS systems
with mobile earth terminals. Similarly, the European Commission/CEPT
adopted a European Testing and Standards Institute (ETSI) standard late
last year for both CDMA and TDMA-type Mobile Satellite Service (MSS)
systems based on this ITU-R recommendation. Second, NTIA proposed both
the wide and narrowband standards cited in its recent petition for rule
making concerning out-of-band emissions standards for protection of
radionavigation devices. By using the most stringent requirement
currently under review, we will ensure that MCHI's concern over the
recall or retrofit of non-compliant equipment in the future is
minimized. Since the Commission will consider the NTIA petition for
rule making in conjunction with full implementation of the GMPCS
Arrangements, any further concerns about the proposed NTIA out-of-band
emission limits are best addressed in the future, separate proceeding.
57. In adopting this standard for voluntary interim certification,
we are not prejudging the standards that we will ultimately adopt in
our future GMPCS proceeding. Rather, we are establishing here a
voluntary certification process designed to facilitate the circulation
of GMPCS terminals across borders, aiding system operators,
manufacturers and users of GMPCS service. If the standards we adopt in
the GMPCS proceeding are more stringent than the ones used for interim
certification, we will require the terminals to meet the stricter
standards, in accordance with any associated implementation provisions
adopted in that proceeding. In order to be used, the terminals must be
operated with a satellite system or service provider authorized to
provide mobile satellite service in the United States. Subsequent to
receiving a blanket authorization under part 25 of the rules, terminals
may be authorized under part 2 of the rules.
58. Accordingly, we amend part 25 of the rules to allow for the
voluntary equipment authorization of all GMPCS terminals meeting the
requirements set forth in our NPRM. Authorizations granted under this
interim provision will be conditioned on the equipment meeting all
final standards eventually adopted for GMPCS-related equipment.
59. Accordingly, It is ordered that parts 0, 2, 15, 25 and 68 of
the Commission's Rules and Regulations are amended as specified in the
Rule Changes attachment and are effective May 3, 1999. This action is
taken pursuant to sections 4(i), 301, 302, 303(e), 303(f), 303(r), 304
and 307 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 301, 302, 303(e), 303(f), 303(r), 304 and 307.
60. It is further ordered that, pursuant to Section 5(c)(1) of the
Communications Act of 1934, as amended, 47 U.S.C. 155(c)(1), authority
is delegated to the copy Chief, Office of Engineering and Technology
(OET) and the Chief, Common Carrier Bureau (CCB) to develop specific
methods that will be used by the National Institute for Standards and
Technology (NIST) to accredit TCBs, consistent with the qualification
criteria herein, to enter into a memorandum of understanding with NIST
on the accreditation process for TCBs, to designate and withdraw the
designation of TCBs, and to develop procedures that TCBs will use for
performing post-market surveillance.
Final Regulatory Flexibility Analysis
61. As required by the Regulatory Flexibility Act
(RFA),21 an Initial Regulatory Flexibility Analysis (IRFA)
was incorporated in the Notice of Proposed Rule Making in GEN Docket
98-68.22 The Commission sought written public comment on the
proposals in the NPRM, including comment on the IRFA. The comments
received are discussed below. This Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.23
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\21\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has
been amended by the Contract With America Advancement Act of 1996,
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the
CWAAA is the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA).
\22\ See Notice of Proposed Rule Making in GEN Docket 98-68, 13
FCC Rcd 10683, 10711 (1998), 63 FR 31685, June 10, 1998.
\23\ See 5 U.S.C. 604.
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Need for, and Objectives of, This Report and Order
62. The Commission is amending parts 2, 15, 25 and 68 of the rules
to provide the option of private sector approval of equipment that
currently requires an approval by the Commission. We are also adopting
rule changes to implement a Mutual Recognition Agreement (MRA) for
product approvals with the European Community (EC), the Asia Pacific
Economic Cooperation (APEC) and other foreign trade parties. These
actions will eliminate the need for manufacturers to wait for approval
from the Commission before marketing equipment in the United States,
thereby reducing the time needed to bring a product to market. We are
also adopting an interim procedure to issue equipment approvals for
Global Mobile Personal Communication for Satellite (GMPCS) terminals
prior to domestic implementation of the GMPCS-MoU Arrangements.\24\
\25\ That action will benefit manufacturers of GMPCS terminals by
allowing greater worldwide acceptance of their products.
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\24\ ``Global Mobile Personal Communications by Satellite''
(GMPCS) service is defined in the 1996 Final Report of the World
Telecommunications Policy Forum as: ``any satellite system, (i.e.,
fixed or mobile, broadband or narrow-band, global or regional,
geostationary or non-geostationary, existing or planned) providing
telecommunication services directly to end users from a
constellation of satellites.''
\25\ The GMPCS MoU and Arrangements are intended to allow the
worldwide transport and use of GMPCS equipment. They are described
in more detail in the NPRM.
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Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
63. Several parties commented on the IRFA. ACIL, Acme, ICS and
Retlif noted
[[Page 4994]]
that the IRFA only focuses on the costs to small manufacturers and not
to small test laboratories. Acme stated that small testing laboratories
may not have the resources to become TCBs and may be forced to exit the
testing business. Retlif stated that the rules will add another
assessment fee to test laboratories who wish to become TCBs or
subcontract with TCBs. SEA does not believe the benefits of the rules
described in the IRFA outweigh the increased expenses and paperwork
burdens that will fall on RF equipment manufacturers.26
However, in its reply comments, TIA disagreed with SEA, stating that
the increased number of TCBs would benefit small companies because of
their global reach. TIA further stated that the vast majority of its
900 members are small and medium companies that support the
Commission's proposed changes.
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\26\ See SEA Regulatory Flexibility comments at 3. The four
benefits to manufacturers we listed in the IRFA are (1) providing
manufacturers with alternatives where they could possibly obtain
certification faster than available from the Commission; (2)
providing the option of obtaining certification from a facility in a
more convenient location; (3) reducing the number of applications
filed with the Commission, thereby enabling the Commission to
redirect resources to enforcement of the rules; and (4) allowing
equipment to be certified in other countries is a necessary step for
concluding mutual recognition agreements.
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Description and Estimate of the Number of Small Entities to Which Rules
Will Apply
64. Under the RFA, small entities may include small organizations,
small businesses, and small governmental jurisdictions. 5 U.S.C.
601(6). The RFA, 5 U.S.C. 601(3), generally defines the term ``small
business'' as having the same meaning as the term ``small business
concern'' under the Small Business Act, 15 U.S.C. 632. 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''). This standard also applies in determining whether an entity
is a small business for purposes of the RFA.
65. Regulatory Flexibility Analyses need only address the impact of
rules on small entities directly regulated by those rules. See Mid-Tex
Electric Cooperative, Inc. v. FERC, 773 F.2d 327, 342-43 (D.C. Cir.
1985). The Commission's equipment authorization rules directly regulate
only manufacturers of equipment, which must satisfy the Commission's
product approval requirements, and not test laboratories. Therefore, we
disagree with ACIL, Acme, ICS and Retlif that the IRFA should have
addressed the impact of the rules on small test laboratories.
66. The Commission has not developed a definition of small entities
applicable to RF Equipment Manufacturers. Therefore, the applicable
definition of small entity is the definition under the SBA rules
applicable to manufacturers of ``Radio and Television Broadcasting and
Communications Equipment.'' According to the SBA's regulation, an RF
manufacturer must have 750 or fewer employees in order to qualify as a
small business.27 Census Bureau data indicates that there
are 858 companies in the United States that manufacture radio and
television broadcasting and communications equipment, and that 778 of
these firms have fewer than 750 employees and would be classified as
small entities.28 We believe that many of the companies that
manufacture RF equipment may qualify as small entities.
---------------------------------------------------------------------------
\27\ See 13 CFR 121.201, Standard Industrial Classification
(SIC) Code 3663.
\28\ See U.S. Department of Commerce, 1992 Census of
Transportation, Communications and Utilities (issued may 1995), SIC
category 3663.
---------------------------------------------------------------------------
67. The Commission has not developed a definition of small
manufacturers of telephone terminal equipment. The closest applicable
definition under SBA rules is for manufacturers of telephone and
telegraph apparatus (SIC 3661), which defines a small manufacturer as
one having 1,000 or fewer employees.29 According to 1992
Census Bureau data, there were 479 such manufacturers, and of those,
436 had 999 or fewer employees, and 7 had between 1,000 and 1,499
employees.30 We estimate that there are fewer than 443 small
manufacturers of terminal equipment that may be affected by the
proposed rules.
---------------------------------------------------------------------------
\29\ 13 CFR 121.201, SIC 3661.
\30\ 1992 Economic Census, Industry and Employment Size of Firm,
Table 1D (data prepared by U.S. Census Bureau under contract to the
U.S. Small Business Administration).
---------------------------------------------------------------------------
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
68. We are allowing designated Telecommunication Certification
Bodies (TCBs) in the United States to issue equipment approvals.
Applicants for equipment authorization may apply either to the FCC or
to a TCB, and they will be required to submit the same application data
and exhibits to either that the rules currently require. Therefore,
there will be no increase in the paperwork burden on manufacturers.
69. We are adopting changes to implement mutual recognition
agreements with the European Community and the Asia Pacific Economic
Cooperation that will permit certain equipment currently required to be
authorized by the FCC to be authorized instead by TCBs in Europe or
Asia. As with TCBs in the United States, applicants would be required
to submit to a foreign TCB the same application data and exhibits they
now submit to the Commission.
70. We are requiring that TCBs submit a copy of certain parts of
each approved application to the FCC. Applications for equipment
authorization under part 2 of the rules will be sent and stored
electronically using the new OET electronic filing system. Paper copies
of part 68 applications will be required, since there is not yet an
electronic filing system for those applications.
71. We are also allowing a voluntary equipment authorization for
mobile transmitters used in the Global Mobile Personal Communications
by Satellite (GMPCS) service. This will require manufacturers who want
to use the voluntary procedure to file an application and technical
exhibits with the FCC and wait for an approval before the equipment can
be marketed. While using the procedure would require an additional
filing with the FCC, it will ultimately reduce the burden on
manufacturers. Under the terms of the GMPCS-MoU and Arrangements, the
single approval obtained in the United States could eliminate the need
to obtain approvals from multiple other countries.
Steps Taken to Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
72. Certain equipment that uses radio frequencies or is connected
to the public switched telecommunications network must be approved by
the Commission before it can be marketed. Allowing parties other than
the Commission to certify equipment will have the following benefits:
(a) It will provide manufacturers with alternatives where they
could possibly obtain certification faster than available from the
Commission.
(b) Manufacturers will have the option of obtaining certification
from a facility in a more convenient location.
(c) It will reduce the number of applications filed with the
Commission, which will enable the Commission to redirect resources to
enforcement of the rules. This will ensure a ``level playing field''
for all manufacturers.
(d) Allowing equipment to be certified by parties located in other
countries is
[[Page 4995]]
an essential and necessary step for concluding mutual recognition
agreements (MRAs). MRAs benefit manufacturers by improving access to
foreign markets.
73. As previously stated, SEA argued that these four benefits do
not outweigh the significant increased expenses and greater paperwork
burden that will fall on RF equipment manufacturers as a result of the
rules. TIA disagreed with SEA, stating that the increased number of
TCBs would benefit small companies because of their global reach, and
that the vast majority of its members are small and medium companies
that support the changes proposed in the NPRM.
74. The Report and Order allows parties other than the Commission
to certify equipment, but it does not change the information required
to obtain a grant of certification. Therefore, there will not be an
increase in the paperwork burden on manufacturers. SEA does not provide
any data to justify its claim of significantly higher expenses to
manufacturers. Further, the Commission will continue to grant
certifications, and these manufacturers have the option to use a TCB,
but are not required to do so. The Commission will not regulate the
fees that TCBs can charge. However, as we stated in the Report and
Order, we expect that competition between TCBs should encourage them to
process applications at a reasonable expense.
75. Report to Congress: The Commission shall send a copy of this
Final Regulatory Flexibility Analysis, along with this Report and
Order, in a report to Congress pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801(a)(1)(A), and
the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects
47 CFR Part 0
Reporting and recordkeeping requirements.
47 CFR Part 2
Radio, Reporting and recordkeeping requirements.
47 CFR Part 15
Communications equipment.
47 CFR Part 25 and 68
Communications equipment, report and recordkeeping requirements.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 0, 2, 15, 25 and 68 as
follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for part 0 continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225
unless otherwise noted.
2. Section 0.241 is amended by adding paragraph (g) to read as
follows:
Sec. 0.241 Authority delegated.
* * * * *
(g) The Chief of the Office of Engineering and Technology is
delegated authority to enter into agreements with the National
Institute of Standards and Technology to perform accreditation of
Telecommunication Certification Bodies (TCBs) pursuant to Secs. 2.960
and 2.962 of this chapter. In addition, the Chief is delegated
authority to develop specific methods that will be used to accredit
TCBs, to designate TCBs, to make determinations regarding the continued
acceptability of individual TCBs, and to develop procedures that TCBs
will use for performing post-market surveillance.
3. Section 0.291 is amended by adding paragraph (i) to read as
follows:
Sec. 0.291 Authority delegated.
* * * * *
(i) The Chief, Common Carrier Bureau, is delegated authority to
enter into agreements with the National Institute of Standards and
Technology to perform accreditation of Telecommunication Certification
Bodies (TCBs) pursuant to Secs. 68.160 and 68.162 of this chapter. In
addition, the Chief is delegated authority to develop specific methods
that will be used to accredit TCBs, to designate TCBs, to make
determinations regarding the continued acceptability of individual TCBs
and to develop procedures that TCBs will use for performing post-market
surveillance.
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
4. The authority citation for part 2 continues to read as follows:
Authority: 47 U.S.C. 154, 302, 303, 307 and 336, unless
otherwise noted.
5. Section 2.960 is added to read as follows:
Sec. 2.960 Designation of Telecommunication Certification Bodies
(TCBs).
(a) The Commission may designate Telecommunication Certification
Bodies (TCBs) to approve equipment as required under this part.
Certification of equipment by a TCB shall be based on an application
with all the information specified in this part. The TCB shall process
the application to determine whether the product meets the Commission's
requirements and shall issue a written grant of equipment
authorization. The grant shall identify the TCB and the source of
authority for issuing it.
(b) The Federal Communications Commission shall designate TCBs in
the United States to approve equipment subject to certification under
the Commission's rules. TCBs shall be accredited by the National
Institute of Standards and Technology (NIST) under its National
Voluntary Conformity Assessment Evaluation (NVCASE) program, or other
recognized programs based on ISO/IEC Guide 65, to comply with the
Commission's qualification criteria for TCBs. NIST may, in accordance
with its procedures, allow other appropriately qualified accrediting
bodies to accredit TCBs and testing laboratories. TCBs shall comply
with the requirements in Sec. 2.962 of this part.
(c) In accordance with the terms of an effective bilateral or
multilateral mutual recognition agreement or arrangement (MRA) to which
the United States is a party, bodies outside the United States shall be
permitted to authorize equipment in lieu of the Commission. A body in
an MRA partner economy may authorize equipment to U.S. requirements
only if that economy permits bodies in the United States to authorize
equipment to its requirements. The authority designating these
telecommunication certification bodies shall meet the following
criteria.
(1) The organization accrediting the prospective telecommunication
certification body shall be capable of meeting the requirements and
conditions of ISO/IEC Guide 61.
(2) The organization assessing the telecommunication certification
body shall appoint a team of qualified experts to perform the
assessment covering all of the elements within the scope of
accreditation. For assessment of telecommunications equipment, the
areas of expertise to be used during the assessment shall include, but
not be limited to, electromagnetic compatibility and telecommunications
equipment (wired and wireless).
6. Section 2.962 is added to read as follows:
[[Page 4996]]
Sec. 2.962 Requirements for Telecommunication Certification Bodies.
(a) Telecommunication certification bodies (TCBs) designated by the
Commission, or designated by another authority pursuant to an effective
bilateral or multilateral mutual recognition agreement or arrangement
to which the United States is a party, shall comply with the following
requirements.
(b) Certification methodology. (1) The certification system shall
be based on type testing as identified in sub-clause 1.2(a) of ISO/IEC
Guide 65.
(2) Certification shall normally be based on testing no more than
one unmodified representative sample of each product type for which
certification is sought. Additional samples may be requested if clearly
warranted, such as when certain tests are likely to render a sample
inoperative.
(c) Criteria for Designation. (1) To be designated as a TCB under
this section, an entity shall, by means of accreditation, meet all the
appropriate specifications in ISO/IEC Guide 65 for the scope of
equipment it will certify. The accreditation shall specify the group of
equipment to be certified and the applicable regulations for product
evaluation.
(2) The TCB shall demonstrate expert knowledge of the regulations
for each product with respect to which the body seeks designation. Such
expertise shall include familiarity with all applicable technical
regulations, administrative provisions or requirements, as well as the
policies and procedures used in the application thereof.
(3) The TCB shall have the technical expertise and capability to
test the equipment it will certify and shall also be accredited in
accordance with ISO/IEC Guide 25 to demonstrate it is competent to
perform such tests.
(4) The TCB shall demonstrate an ability to recognize situations
where interpretations of the regulations or test procedures may be
necessary. The appropriate key certification and laboratory personnel
shall demonstrate a knowledge of how to obtain current and correct
technical regulation interpretations. The competence of the
telecommunication certification body shall be demonstrated by
assessment. The general competence, efficiency, experience, familiarity
with technical regulations and products included in those technical
regulations, as well as compliance with applicable parts of the ISO/IEC
Guides 25 and 65, shall be taken into consideration.
(5) A TCB shall participate in any consultative activities,
identified by the Commission or NIST, to facilitate a common
understanding and interpretation of applicable regulations.
(6) The Commission will provide public notice of the specific
methods that will be used to accredit TCBs, consistent with these
qualification criteria.
(d) Sub-contractors. (1) In accordance with the provisions of sub-
clause 4.4 of ISO/IEC Guide 65, the testing of a product, or a portion
thereof, may be performed by a sub-contractor of a designated TCB,
provided the laboratory has been assessed by the TCB as competent and
in compliance with the applicable provisions of ISO/IEC Guide 65 and
other relevant standards and guides.
(2) When a subcontractor is used, the TCB shall be responsible for
the test results and shall maintain appropriate oversight of the
subcontractor to ensure reliability of the test results. Such oversight
shall include periodic audits of products that have been tested.
(e) Designation of TCBs. (1) The Commission will designate as a TCB
any organization that meets the qualification criteria and is
accredited by NIST or its recognized accreditor.
(2) The Commission will withdraw the designation of a TCB if the
TCB's accreditation by NIST or its recognized accreditor is withdrawn,
if the Commission determines there is just cause for withdrawing the
designation, or if the TCB requests that it no longer hold the
designation. The Commission will provide a TCB with 30 days notice of
its intention to withdraw the designation and provide the TCB with an
opportunity to respond.
(3) A list of designated TCBs will be published by the Commission.
(f) Scope of responsibility. (1) TCBs shall certify equipment in
accordance with the Commission's rules and policies.
(2) A TCB shall accept test data from any source, subject to the
requirements in ISO/IEC Guide 65, and shall not unnecessarily repeat
tests.
(3) TCBs may establish and assess fees for processing certification
applications and other tasks as required by the Commission.
(4) A TCB may rescind a grant of certification within 30 days of
grant for administrative errors. After that time, a grant can only be
revoked by the Commission through the procedures in Sec. 2.939 of this
part. A TCB shall notify both the applicant and the Commission when a
grant is rescinded.
(5) A TCB may not:
(i) Grant a waiver of the rules, or certify equipment for which the
Commission rules or requirements do not exist or for which the
application of the rules or requirements is unclear.
(ii) Take enforcement actions; or
(iii) Authorize a transfer of control of a grantee.
(6) All TCB actions are subject to Commission review.
(g) Post-certification requirements. (1) A TCB shall supply an
electronic copy of each approved application form and grant of
certification to the Commission.
(2) In accordance with ISO/IEC Guide 65, a TCB is required to
conduct appropriate post-market surveillance activities. These
activities shall be based on type testing a few samples of the total
number of product types which the certification body has certified.
Other types of surveillance activities of a product that has been
certified are permitted, provided they are no more onerous than testing
type. The Commission may at any time request a list of products
certified by the certification body and may request and receive copies
of product evaluation reports. The Commission may also request that a
TCB perform post-market surveillance, under Commission guidelines, of a
specific product it has certified.
(3) If during post market surveillance of a certified product, a
certification body determines that a product fails to comply with the
applicable technical regulations, the certification body shall
immediately notify the grantee and the Commission. A follow-up report
shall also be provided within thirty days of the action taken by the
grantee to correct the situation.
(4) Where concerns arise, the TCB shall provide a copy of the
application file within 30 calendar days upon request by the Commission
to the TCB and the manufacturer. Where appropriate, the file should be
accompanied by a request for confidentiality for any material that
qualifies as trade secrets. If the application file is not provided
within 30 calendar days, a statement shall be provided to the
Commission as to why it cannot be provided.
(h) In case of a dispute with respect to designation or recognition
of a TCB and the testing or certification of products by a TCB, the
Commission will be the final arbiter. Manufacturers and designated TCBs
will be afforded at least 30 days to comment before a decision is
reached. In the case of a TCB designated or recognized, or a product
certified pursuant to an effective bilateral or multilateral mutual
recognition agreement or arrangement (MRA) to which the United States
is a party, the Commission may limit or withdraw its recognition of a
TCB
[[Page 4997]]
designated by an MRA party and revoke the certification of products
using testing or certification provided by such a TCB. The Commission
shall consult with the Office of the United States Trade Representative
(USTR), as necessary, concerning any disputes arising under an MRA for
compliance with the Telecommunications Trade Act of 1988 (Section 1371-
1382 of the Omnibus Trade and Competitiveness Act of 1988).
PART 15--RADIO FREQUENCY DEVICES
7. The authority citation for part 15 continues to read as follows:
Authority: 47 U.S.C. 154, 302, 303, 304, 307 and 544A.
8. Section 15.101, is amended by revising paragraph (a) to read as
follows:
Sec. 15.101 Equipment authorization of unintentional radiators.
(a) Except as otherwise exempted in Secs. 15.23, 15.103, and
15.113, unintentional radiators shall be authorized prior to the
initiation of marketing, as follows:
----------------------------------------------------------------------------------------------------------------
Type of device Equipment authorization required
----------------------------------------------------------------------------------------------------------------
TV broadcast receiver.................. Verification.
FM broadcast receiver.................. Verification.
CB receiver............................ Declaration of Conformity or Certification.
Superregenerative receiver............. Declaration of Conformity or Certification.
Scanning receiver...................... Certification.
All other receivers subject to part 15. Declaration of Conformity or Certification.
TV interface device.................... Declaration of Conformity or Certification.
Cable system terminal device........... Declaration of Conformity.
Stand-alone cable input selector switch Verification.
Class B personal computers and Declaration of Conformity or Certification.\1\
peripherals.
CPU boards and internal power supplies Declaration of Conformity or Certification.\1\
used with Class B personal computers.
Class B personal computers assembled Declaration of Conformity.
using authorized CPU boards or power
supplies.
Class B external switching power Verification.
supplies.
Other Class B digital devices and Verification.
peripherals.
Class A digital devices, peripherals Verification.
and external switching power supplies.
All other devices...................... Verification.
----------------------------------------------------------------------------------------------------------------
Note to table: Where the above table indicates more than one category of authorization for a device, the party
responsible for compliance has the option to select the type of authorization.
\1\ Applications for this equipment will no longer be accepted by the Commission once domestic Telecommunication
Certification Bodies are available to certificate the equipment. See Sec. 2.960 of this chapter.
* * * * *
PART 25--SATELLITE COMMUNICATIONS
9. The authority citation for part 25 continues to read as follows:
Authority: 47 U.S.C. 701-744. Interprets or applies sec. 303, 47
U.S.C. 303. 47 U.S.C. sections 154, 301, 302, 303, 307, 309 and 332,
unless otherwise noted.
10. Section 25.200 is added to read as follows:
Sec. 25.200 Interim equipment authorization.
(a) For purposes of this section, a ``GMPCS system'' is defined as
``any satellite system, (i.e., fixed or mobile, broadband or narrow-
band, global or regional, geostationary or non-geostationary, existing
or planned) providing telecommunication services directly to end users
from a constellation of satellites.''
(b) Subsequent to receiving a blanket authorization under this
part, terminals used in conjunction with GMPCS systems, as defined
under Sec. 25.200 (a) of this part, may also obtain an equipment
authorization from the Commission in accordance with the certification
procedure for use under this part. The certification procedure is found
in part 2, subpart J of this chapter.
(c) In order to be granted certification, a transmitter shall
comply with the technical specifications in this part. In addition,
mobile earth satellite terminals for use in the band of 1610-1626.5 MHz
shall meet a specific out-of-band emissions limit. Emissions in the
band 1559-1605 MHz shall be limited to -70 dBW/MHz averaged over any 20
millisecond period for wideband signals, and a standard of -80 dBW
across within the measurement bandwidth of 700 Hz or less for
narrowband signals.
(d) Licensees and manufacturers are subject to the radiofrequency
radiation exposure requirements specified in Secs. 1.1307(b), 2.1091
and 2.1093 of this chapter, as appropriate. Applications for equipment
authorization of mobile or portable devices operating under this
section shall contain a statement confirming compliance with these
requirements for both fundamental emissions and unwanted emissions.
Technical information showing the basis for this statement shall be
submitted to the Commission upon request.
(e) Equipment authorizations issued pursuant to this section will
be conditioned on the equipment meeting all relevant technical
requirements that are adopted by the Commission in implementing the
GMPCS Arrangements.
PART 68--CONNECTION OF TERMINAL EQUIPMENT TO THE TELEPHONE NETWORK
11. The authority citation for part 68 continues to read as
follows:
Authority: 47 U.S.C. 154, 303.
12. Section 68.160 is added to read as follows:
Sec. 68.160 Designation of Telecommunication Certification Bodies
(TCBs).
(a) The Commission may designate Telecommunication Certification
Bodies (TCBs) to approve equipment as required under this part.
Certification of equipment by a TCB shall be based on an application
with all the information specified in this part. The TCB shall process
the application to determine whether the product meets the Commission's
requirements and shall issue a written grant of equipment
authorization. The grant shall identify the TCB and the source of
authority for issuing it.
(b) The Federal Communications Commission shall designate TCBs in
the United States to approve equipment subject to certification under
the Commission's rules. TCBs shall be accredited by the National
Institute of Standards and Technology (NIST) under its National
Voluntary Conformity Assessment Evaluation (NVCASE)
[[Page 4998]]
program or other recognized programs based on ISO/IEC Guide 65, to
comply with the Commission's qualification criteria for TCBs. NIST may,
in accordance with its procedures, allow other appropriately qualified
accrediting bodies to accredit TCBs and testing laboratories. TCBs
shall comply with the requirements in Sec. 68.162 of this part.
(c) In accordance with the terms of an effective bilateral or
multilateral mutual recognition agreement or arrangement (MRA) to which
the United States is a party, bodies outside the United States shall be
permitted to authorize equipment in lieu of the Commission. A body in
an MRA partner economy may authorize equipment to U.S. requirements
only if that economy permits bodies in the United States to authorize
equipment to its requirements. The authority designating these
telecommunication certification bodies shall meet the following
criteria.
(1) The organization accrediting the prospective telecommunication
certification body shall be capable of meeting the requirements and
conditions of ISO/IEC Guide 61.
(2) The organization assessing the telecommunication certification
body shall appoint a team of qualified experts to perform the
assessment covering all of the elements within the scope of
accreditation. For assessment of telecommunications equipment, the
areas of expertise to be used during the assessment shall include, but
not be limited to, electromagnetic compatibility and telecommunications
equipment (wired and wireless).
13. Section 68.162 is added to read as follows:
Sec. 68.162 Requirements for Telecommunication Certification Bodies.
(a) Telecommunication certification bodies (TCBs) designated by the
Commission, or designated by another authority pursuant to an effective
mutual recognition agreement or arrangement to which the United States
is a party, shall comply with the following requirements.
(b) Certification methodology. (1) The certification system shall
be based on type testing as identified in sub-clause 1.2(a) of ISO/IEC
Guide 65.
(2) Certification shall normally be based on testing no more than
one unmodified representative sample of each product type for which
certification is sought. Additional samples may be requested if clearly
warranted, such as when certain tests are likely to render a sample
inoperative.
(c) Criteria for designation. (1) To be designated as a TCB under
this section, an entity shall, by means of accreditation, meet all the
appropriate specifications in ISO/IEC Guide 65 for the scope of
equipment it will certify. The accreditation shall specify the group of
equipment to be certified and the applicable regulations for product
evaluation.
(2) The TCB shall demonstrate expert knowledge of the regulations
for each product with respect to which the body seeks designation. Such
expertise shall include familiarity with all applicable technical
regulations, administrative provisions or requirements, as well as the
policies and procedures used in the application thereof.
(3) The TCB shall have the technical expertise and capability to
test the equipment it will certify and shall also be accredited in
accordance with ISO/IEC Guide 25 to demonstrate it is competent to
perform such tests.
(4) The TCB shall demonstrate an ability to recognize situations
where interpretations of the regulations or test procedures may be
necessary. The appropriate key certification and laboratory personnel
shall demonstrate a knowledge of how to obtain current and correct
technical regulation interpretations. The competence of the
telecommunication certification body shall be demonstrated by
assessment. The general competence, efficiency, experience, familiarity
with technical regulations and products included in those technical
regulations, as well as compliance with applicable parts of the ISO/IEC
Guides 25 and 65, shall be taken into consideration.
(5) A TCB shall participate in any consultative activities,
identified by the Commission or NIST, to facilitate a common
understanding and interpretation of applicable regulations.
(6) The Commission will provide public notice of specific elements
of these qualification criteria that will be used to accredit TCBs.
(d) Sub-contractors. (1) In accordance with the provisions of sub-
clause 4.4 of ISO/IEC Guide 65, the testing of a product, or a portion
thereof, may be performed by a sub-contractor of a designated TCB,
provided the laboratory has been assessed by the TCB as competent and
in compliance with the applicable provisions of ISO/IEC Guide 65 and
other relevant standards and guides.
(2) When a subcontractor is used, the TCB shall be responsible for
the test results and shall maintain appropriate oversight of the
subcontractor to ensure reliability of the test results. Such oversight
shall include periodic audits of products that have been tested.
(e) Designation of TCBs. (1) The Commission will designate as a TCB
any organization that meets the qualification criteria and is
accredited by NIST or its recognized accreditor.
(2) The Commission will withdraw the designation of a TCB if the
TCB's accreditation by NIST or its recognized accreditor is withdrawn,
if the Commission determines there is just cause for withdrawing the
designation, or if the TCB requests that it no longer hold the
designation. The Commission will provide a TCB with 30 days notice of
its intention to withdraw the designation and provide the TCB with an
opportunity to respond.
(3) A list of designated TCBs will be published by the Commission.
(f) Scope of responsibility. (1) TCBs shall certify equipment in
accordance with the Commission's rules and policies.
(2) A TCB shall accept test data from any source, subject to the
requirements in ISO/IEC Guide 65, and shall not unnecessarily repeat
tests.
(3) TCBs may establish and assess fees for processing certification
applications and other tasks as required by the Commission.
(4) A TCB may rescind a grant of certification within 30 days of
grant for administrative errors. After that time, a grant can only be
revoked by the Commission. A TCB shall notify both the applicant and
the Commission when a grant is rescinded.
(5) A TCB may not:
(i) Grant a waiver of the rules, or certify equipment for which the
Commission rules or requirements do not exist or for which the
application of the rules or requirements is unclear.
(ii) Take enforcement actions.
(6) All TCB actions are subject to Commission review.
(g) Post-certification requirements. (1) A TCB shall supply a copy
of each approved application form and grant of certification to the
Commission.
(2) In accordance with ISO/IEC Guide 65, a TCB is required to
conduct appropriate surveillance activities. These activities shall be
based on type testing a few samples of the total number of product
types which the certification body has certified. Other types of
surveillance activities of a product that has been certified are
permitted, provided they are no more onerous than testing type. The
Commission may at any time request a list of products certified by the
certification body and may request and receive copies of product
evaluation reports. The Commission may also request that a TCB perform
post-market surveillance, under Commission
[[Page 4999]]
guidelines, of a specific product it has certified.
(3) If during post market surveillance of a certified product, a
certification body determines that a product fails to comply with the
applicable technical regulations, the certification body shall
immediately notify the grantee and the Commission. A follow-up report
shall also be provided within thirty days of the action taken by the
grantee to correct the situation.
(4) Where concerns arise, the TCB shall provide a copy of the
application file within 30 calendar days upon request by the Commission
to the TCB and the manufacturer. Where appropriate, the file should be
accompanied by a request for confidentiality for any material that
qualifies as trade secrets. If the application file is not provided
within 30 calendar days, a statement shall be provided to the
Commission as to why it cannot be provided.
(h) In case of a dispute with respect to designation or recognition
of a TCB and the testing or certification of products by a TCB, the
Commission will be the final arbiter. Manufacturers and designated TCBs
will be afforded at least 30 days to comment before a decision is
reached. In the case of a TCB designated or recognized, or a product
certified pursuant to an effective bilateral or multilateral mutual
recognition agreement or arrangement (MRA) to which the United States
is a party, the Commission may limit or withdraw its recognition of a
TCB designated by an MRA party and revoke the certification of products
using testing or certification provided by such a TCB. The Commission
shall consult with the Office of the United States Trade Representative
(USTR), as necessary, concerning any disputes arising under an MRA for
compliance with under the Telecommunications Trade Act of 1988 (Section
1371-1382 of the Omnibus Trade and Competitiveness Act of 1988).
[FR Doc. 99-2408 Filed 2-1-99; 8:45 am]
BILLING CODE 6712-01-P
