og96036.txt

Office of the General Counsel
B-274142
August 29, 1996
The Honorable Larry Pressler Chairman The Honorable Ernest F.
Hollings Ranking Minority Member Committee on Commerce, Science,
and Transportation United States Senate
The Honorable Thomas J. Bliley, Jr. Chairman The Honorable John
D. Dingell Ranking Minority Member Committee on Commerce House of
Representatives
Subject: Federal Communications Commission: Access to
Telecommunications Equipment and Services by Persons With
Disabilities
Pursuant to section 801(a)(2)(A) of title 5, United States Code,
this is our report on a major rule promulgated by the Federal
Communications Commission, entitled "Access to Telecommunications
Equipment and Services by Persons With Disabilities" (FCC-96-285).
We received the rule on July 12, 1996. It was published in the
Federal Register as a final rule on August 14, 1996. 61 Fed. Reg.
42181.
In adopting this Report and Order, the Commission amends its
rules to require that, either at specific dates in the future or on
a phased-in basis, all telephones in workplaces, confined settings
(such as hospitals and nursing homes), and hotels and motels be
hearing aid compatible; have volume control; and have the letters
"HAC" affixed to them. The Report and Order also requires that, as
of November 1998, importers and manufacturers include volume
control in all new phones for use in the United States. The
Commission believed these actions were needed to provide greater
access to telephones by persons with hearing disabilities, as
required by the Hearing Aid Compatibility Act of 1988, 47 U.S.C. §
610.
GAO/OGC-96-36
Enclosed is our assessment of the Federal Communications
Commission's compliance with the procedural steps required by
sections 801(a)(1)(B)(i) through
(iv) of title 5 with respect to this Final Report and Order. Our
review indicates that the Federal Communications Commission
complied with the applicable requirements.
If you have any questions about this report, please contact
Kathleen E. Wannisky, Associate General Counsel for Operations, at
[phone]. The official responsible for GAO evaluation work
relating to the Federal Communications Commission is John Anderson,
Director of Transportation and Telecommunications Issues. Mr.
Anderson can be reached at [phone].
Robert P. Murphy General Counsel
Enclosure
cc: Mr. Andrew S. Fishel Managing Director Federal
Communications Commission
Page 2 GAO/OGC-96-36
ENCLOSURE
ANALYSIS UNDER 5 U.S.C. § 801(a)(1)(B)(i)-(iv) OF A MAJOR RULE
ISSUED BY THE FEDERAL COMMUNICATIONS COMMISSION ENTITLED "ACCESS TO
TELECOMMUNICATIONS EQUIPMENT AND SERVICES BY PERSONS WITH
DISABILITIES" (FCC-96-285)
BACKGROUND OF REPORT AND ORDER
In 1992 the Federal Communications Commission (FCC) adopted
rules to implement the requirements of the Hearing Aid
Compatibility Act of 1988, 47 U.S.C. § 610. In 1993, reacting to
petitions filed by establishments affected by the rules, the
Commission suspended portions of the rules stating that these
establishments were experiencing serious difficulties in their
attempts to comply with the rules. (8 FCC Rcd 4958 (1993), 58 Fed.
Reg. 26692). The Commission later announced the formation of the
Hearing Aid Compatibility Negotiated Rulemaking Committee, an
advisory committee that would consider whether the rule suspension
should be lifted and whether new rules should be proposed. (59 Fed.
Reg. 60343, 58 Fed. Reg. 1539, and 60 Fed. Reg. 27945). The
Committee's members included telephone equipment manufacturers,
employers, hospitals and nursing homes, hotels and motels, persons
with disabilities, and an FCC representative. The Committee's Final
Report, adopted by unanimous consent, was filed with the FCC in
August 1995.
(i) Cost-benefit analysis
Section 610(e) of the Hearing Aid Compatibility Act of 1988, 47
U.S.C. § 610, requires the Commission to consider the costs and
benefits of proposed rules to all telephone users, including
persons with and without hearing disabilities. In the Notice of
Proposed Rulemaking the Commission solicited comments on the costs
to establishments of providing volume control and hearing aid
compatibility. After reviewing the comments, the Commission
concluded that the $.50 to $1.00 per unit increase in manufacturing
costs does not impose a significant additional cost to users,
especially considering the lengthy phase-in period for the
requirements. It also concluded that any costs are significantly
outweighed by the benefits to be achieved.
GAO/OGC-96-36
(ii) Agency actions relevant to the Regulatory Flexibility Act,
5 U.S.C. §§ 603-605, 607 and 609
Section 603: Initial Regulatory Flexibility Analysis
The Commission initiated this proceeding with a Notice of
Proposed Rulemaking (11 FCC Rcd 4338) that reflected the
recommendations of the Hearing Aid Compatibility Negotiated
Rulemaking Committee. That notice was summarized in the Federal
Register (60 Fed. Reg. 63667). In the Notice, the Commission
published an Initial Regulatory Flexibility Analysis and invited
written public comments on the proposed rulemaking, including
comments on the Initial Regulatory Flexibility Analysis.
The analysis included in the proposed rulemaking provides the
information required by sections 603(b)(1) and (2), describing the
reasons for the proposed action and its objectives and legal basis.
The information required by sections 603(b)(3) and (4) concerning
the estimate of the classes of small entities subject to the Report
and Order and the projected reporting, recordkeeping and other
compliance requirements of the proposed rulemaking is also
included.
In the analysis, the Commission stated its belief that the
proposed Report and Order does not duplicate, overlap, or conflict
with any other relevant federal rules in accordance with the
provisions of section 603(b)(5).
The Initial Regulatory Flexibility Analysis did not discuss any
significant alternatives minimizing the impact on small
entities.
Section 604: Final Regulatory Flexibility Analysis
The Supplementary Information published in the Federal Register
includes the full text of the Commission's Final Regulatory
Flexibility Analysis. 61 Fed. Reg. 42181. That analysis includes
information required by section 604, including a description of the
need for and purpose of this Report and Order.
Although no comments were submitted in direct response to the
Initial Regulatory Flexibility Analysis, the Commission noted that
a number of the general comments on the Notice of Proposed
Rulemaking raised issues that could affect small entities. In
response to comments, the Commission extended the compliance
deadline for volume control from 1 year to 2 years and for HAC
labelling of telephones by 6 months.
The analysis describes and estimates the number of small
entities affected by the Report and Order, addressing separately
workplaces, confined settings such as hospitals and nursing homes,
hotels and motels, and importers and manufacturers
Page 2 GAO/OGC-96-36
of telephones for use in the United States. The analysis also
discusses the projected reporting, recordkeeping and other
compliance requirements of the Report and Order.
Finally, the Commission considered two significant alternatives
that could minimize the impact on small businesses: (1) not
including within the purview of "telephones provided for emergency
use" those telephones in workplace noncommon areas, in confined
settings and in hotels and motels and (2) not requiring volume
controls on the covered telephones. The Commission stated that it
rejected both alternatives because both seriously decreased the
ability of hearing- impaired individuals to gain access to phones
in emergency situations.
Commission officials confirmed that copies of both the Initial
and the Final Regulatory Flexibility Analyses were submitted to the
Chief Counsel, Small Business Administration.
Section 609: Participation by small entities
The Report and Order, in large part, adopts the unanimous
recommendations of the Hearing Aid Compatibility Negotiated
Rulemaking Committee, an advisory committee established by the
Federal Communications Commission in 1995. According to the
Commission, the Committee's membership included small businesses
and associations representing both large and small businesses as
well as a telecommunication association representing end-users,
some of whom are small entities.
(iii) Agency actions relevant to sections 202-205 of the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532-1535
As an independent regulatory agency, the Commission is not
subject to Title II of the Unfunded Mandates Reform Act of
1995.
(iv) Other relevant information or requirements under Acts and
Executive orders
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
The Commission promulgated this rule under the notice and
comment procedures of 5 U.S.C. § 553. A Notice of Proposed
Rulemaking was released on November 28, 1995 (11 FCC Rcd 4338). A
summary of the notice was published in the Federal Register (60
Fed. Reg. 63667). In response to the Notice, 31 parties filed
comments, 45 parties filed informal comment letters, and 6 parties
filed reply comments. Appendix A to the Report and Order lists the
parties filing comments and reply comments. The Report and Order
provides a discussion of these comments and Commission reaction to
them.
Page 3 GAO/OGC-96-36
Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520
The Notice of Proposed Rulemaking solicited public comment on
specific aspects of the collections and was submitted to OMB for
review pursuant to 44 U.S.C. § 3507(d)(1). OMB assigned control
number 3060-0687 to the collection and approved several of the
proposals while filing comment on one of the proposed
requirements.
The Notice of Proposed Rulemaking discussed three requirements
subject to the Paperwork Reduction Act of 1995. First, the item
proposed that importers and manufacturers of new telephones for use
in the United States be required to stamp the date of manufacture
on new telephones. Under current rules, the date of manufacture is
optional. The Commission stated that a date stamp on a telephone
would indicate to users that a telephone is hearing aid compatible
if it were imported or manufactured after August 16, 1989, when all
new telephones were required to be hearing aid compatible. Second,
until the rules for all workplace telephones go into effect, the
Commission proposed that employers designate certain hearing aid
compatible telephones for emergency use. Third, the Commission
proposed to amend a Commission rule regarding packaging to clarify
that the type of hearing aid compatibility referred to is
electro-magnetic coil compatibility.
As a result of comments from groups representing persons with
hearing disabilities and the Office of Management and Budget, the
Commission modified its date stamp proposal in the Report and
Order. Instead of requiring a date stamp, the Report and Order
required that new telephones be stamped with the letters "HAC."
Commenters stated that a date stamp would be meaningless to many
installers and users, but that a letter stamp would be much more
informative. The Commission also changed the effective date of the
letter stamping requirement from the effective date of the Report
and Order to April 1, 1997, to give importers and manufacturers
time to make equipment changes.
The Commission also confirmed, in its Report and Order, its
proposal to require employers to designate emergency use telephones
until the new hearing aid compatibility rules are implemented. The
Commission rejected suggestions to issue specific signage
requirements, saying that the requirement that employers designate
the telephones was sufficient. The Commission also amended its rule
regarding packaging to clarify the type of hearing aid
compatibility to which the rule refers.
The final requirements were submitted to OMB on July 23, 1996,
pursuant to 44
U.S.C. § 3507(d)(2) for approval. The Report and Order is
effective October 23, 1996, 70 days after the August 14, 1996,
publication of the Report and Order in the Federal Register.
Page 4 GAO/OGC-96-36
Statutory authorization for the rule
The Commission has promulgated this rule pursuant to provisions
of the Hearing Aid Compatibility Act of 1988 (47 U.S.C. § 610).
The Commission did not identify any other statutes or executive
orders imposing requirements relevant to this Report and Order.
Page 5 GAO/OGC-96-36