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Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Rules and Regulations additional clarification is necessary to provide certainty to manufacturers and importers that take advantage of the additional flexibility the Commission is providing regarding importation for presale activity. As such, the Commission is adopting an additional provision to clarify that devices with different FCC
IDs are considered to be separate devices; i.e., up to 12,000 devices with the same FCC ID number may be imported for pre-sale activities. The Commission adopts this requirement as opposed to a SKU number-based requirement as suggested by Garmin because FCC ID is the officially recognized method for identifying equipment, is required by FCC rules to be labelled on the device, and can be tracked through the FCC equipment authorization system database; SKU
numbers, on the other hand, have no regulatory meaning under FCC rules.
Moreover, use of FCC ID will not be burdensome for manufacturers and importers because, as discussed below, devices subject to the Commissions new rules may not be imported until an application for certification has been submitted and therefore an FCC ID will already be associated with such equipment.
Submission of Application for Certification. In the NPRM, the Commission proposed to require that manufacturers importing devices under the proposed exception have a reasonable belief that authorization will be granted within 30 days of importation. The Commission asked several questions related to how manufacturers could comply with this requirement. Most commenters stating that 30 days would not be sufficient suggest that 90 days would be more appropriate. Two filers, Information Technology Industry Council and the Joint Commenters Telecommunications Industry Association, Association of Home Appliance Manufacturers, Engine, The internet Association, INCOMPAS, the Rural & Agriculture Council of America, and TechFreedom, suggest that 6090 days would be generally sufficient and, for devices that require a TCB to coordinate with the OET Lab prior to taking action on the certification application, via the preapproval guidance procedure, 120180
days would be reasonable. One commenter, Information Technology and Innovation Foundation, states that the increased complexity of devices would make enforcing an expectation requirement difficult and suggests that the Commission allow manufacturers options for demonstrating reasonable belief of imminent authorization, such
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as relying on process milestones.
Similarly, Samsung suggests that delivery to an accredited test lab or TCB
for testing would be an appropriate basis for a reasonable expectation of authorization. R Street Institute R
Street also notes that determining compliance with the criterion would be difficult and suggests that the Commission provides manufacturers flexibility in this regard, provided that they maintain documentation demonstrating their internal logic regarding authorization.
The Commission believes that parties who avail themselves of the new importation exception should be permitted to do so only if they reasonably believe that a certification will be issued as close to the importation date as is possible.
However, based upon the record, the Commission declines to adopt the 30day timeframe. As many commenters suggest that the timeframe needed for certification can be unpredictable depending on device complexity and other factors, the Commission is adopting a rule that does not include a specific timeframe but is instead based on the submission of the equipment certification application. As the commenters recommendations are informed by their experiences with the equipment authorization process, requiring a reasonable belief of completion of certification activities within a specific timeframe would not accurately reflect the real world process in many circumstances.
Similarly, if the Commission were to specify multiple timeframes to cover different situations, there would still be numerous scenarios not covered, thus adding an unnecessary level of complexity to the rule that could limit its utility and result in confusion and inconsistent applicability.
Accordingly, the Commission is adopting a requirement that importation for pre-sale activities prior to the device receiving certification can only occur after compliance testing is complete and an application for certification has been submitted, in good faith, to a TCB. At that point, an applicant will have expended considerable time, effort, and money to develop a product as well as entered into a testing and approval process that requires expending additional resources. The Commission finds that this specific milestone reflects a point in the certification process by which the applicant can reasonably expect a grant. Allowing importation prior to the completion of compliance testing would increase the risk associated with distributing the unauthorized devices because the
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testing could reveal compliance issues that require device modification. The Commission will not require any additional process milestones to be tracked to demonstrate compliance with the adopted rule. The Commission notes that some aviation and maritime devices subject to the equipment certification process require additional reviews and approvals, such as from the Federal Aviation Administration and the United States Coast Guard. In some cases those additional approvals from other agencies must be done prior to submitting an application for FCC
equipment certification and in some instances approval may be obtained concurrently. The rule the Commission adopts here has no impact on those requirements, but entities intending to avail themselves of this new import condition should consider the processing time and technical requirements of those reviews and approvals in relation to the certification process to determine when to begin importation under the new condition.
Further, the Commission notes that parties must satisfy all conditions required for their equipment and comply with all conditions imposed by all relevant agencies under which the equipment is regulated; permission to market devices under FCC rules does not provide similar approval from other relevant agencies and all requirements must be satisfied in accordance with those agencies rules. The Commission expects applications to be filed in good faith, with accurate data and as completely as possible, and applicants must be responsive to any TCB requests for additional data.
B. Marketing of RF Devices Prior to Equipment Authorization The Commission is adopting its proposal to allow expanded conditional sales of RF devices prior to authorization, with appropriate clarifications regarding applicability and conditions. The internet provides todays consumer with numerous opportunities to obtain innovative new products both directlyvia crowdfunding platforms at the developmental stages, and through sales and distribution services offered by manufacturers and developersand indirectly, through third party marketplaces, both online and in person. This new-found ability to more easily obtain the latest products has led to savvier consumers, who have a greater awareness of technological developments and expect to obtain the newest products as soon as possible. At the same time, the ability to deal directly with consumers at the earliest
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