[Federal Register Volume 59, Number 225 (Wednesday, November 23, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28518]


[[Page Unknown]]

[Federal Register: November 23, 1994]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 68

[CC Docket No. 87-124; FCC 94-280]

 

Establishment of an Advisory Committee to Negotiate Regulations

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this Public Notice, the Commission seeks comment on 
establishing an Advisory Committee to negotiate regulations to specify 
the requirements for hearing aid compatible (HAC) telephones in 
workplaces, hospitals, certain other health care facilities, prisons, 
hotels, and motels.

DATES: Interested parties may file comments and nominations for 
Committee membership on or before December 23, 1994.

ADDRESSES: Comments and/or nominations should be sent to the Office of 
the Secretary, CC Docket No. 87-124, Federal Communications Commission, 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

John Walker, Common Carrier Bureau, 2025 M Street, NW., Washington, DC 
20554 (202) 634-1820 or (202) 632-0484 (TTY).

SUPPLEMENTARY INFORMATION:

FCC Asks for Comments and Nominations for Membership Regarding the 
Establishment of an Advisory Committee to Negotiate Regulations

    Released: November 7, 1994.

    1. The Commission hereby seeks comment on establishing an Advisory 
Committee to negotiate regulations to specify the requirements for 
hearing aid compatible (HAC) telephones in workplaces, hospitals, 
certain other health care facilities, prisons, hotels and motels. The 
negotiations are to assist the Commission in developing regulations 
that, among other things, will determine whether to lift the suspension 
of enforcement of Sec. 68.112(b) (1), (3), and (5) of the Commission's 
rules. 47 CFR 68.112(b) (1), (3), (5). Those sections require that all 
telephones in all workplaces, hospitals, certain other health care 
facilities, prisons, hotels and motels be hearing aid compatible by May 
1, 1993 for establishments with 20 or more employees and by May 1, 1994 
for establishments with fewer than 20 employees. See Access to 
Telecommunications Equipment and Services by the Hearing Impaired and 
Other Persons with Disabilities, Report and Order, in FCC 92-217, 57 FR 
27184 (June 4, 1992). The negotiating committee would be created under 
the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and the 
Negotiated Rulemaking Act of 1990 (NRA), Pub. L. 101-648, November 28, 
1990, and would consist of representatives of the interests that will 
be significantly affected by these rules.
    2. On April 13, 1993, the Commission suspended until further notice 
enforcement of the requirement adopted in 1992 that all telephones in 
all workplaces employing 20 or more persons be hearing aid compatible 
by May 1, 1993. In addition, the Commission also suspended enforcement 
of the requirement that all telephones in workplaces employing fewer 
than 20 employees be hearing aid compatible by May 1, 1994. The 
Commission suspended enforcement of other requirements that telephones 
in all hospitals, certain other health care facilities, prisons, hotels 
and motels be hearing aid compatible by May 1, 1993 for establishments 
with 20 or more employees, and by May 1, 1994 for establishments with 
fewer than 20 employees. The Commission suspended enforcement of the 
rules for these telephones only if an alternative means of signalling 
life-threatening situations is available in such confined settings. The 
Commission previously had required telephones in workplace common 
areas, at the work stations of employees with hearing disabilities, and 
in areas where emergencies might require HAC telephones to be HAC.
    Shortly before the effective date of the more stringent 
regulations, the Commission received numerous complaints from 
organizations alleging an inability to meet the deadline. The 
complaints raised legal and practical problems with the new HAC 
requirements, asserting that the number of phones to be retrofitted and 
the cost of doing so were much greater than originally envisioned and 
that retrofitters were unable to meet the demand. Some stated that they 
would be forced to remove telephones from use altogether to avoid 
violating HAC requirements, raising safety concerns. Finally, many 
claimed that the new retrofitting requirements violated the Hearing Aid 
Compatibility Act of 1988, which prohibits the Commission from 
requiring the retrofitting of any telephones other than coin-operated 
telephones or those provided for emergency use.
    On May 12, 1993, the Alexander Graham Bell Association (the 
Association) filed an Emergency Request to Reinstate Enforcement of the 
rules. The Association argues that the suspension of enforcement 
violated section 553(b)(3) of the Administrative Procedure Act. 
Seventeen parties filed in opposition to the petition, and six parties 
filed in support of the petition, which is pending before the 
Commission.

I. Regulatory Negotiation

    3. Regulatory Negotiation is a technique through which the 
Commission seeks to develop better regulations in a less adversarial 
setting. Negotiations are conducted through an Advisory Committee 
chartered under FACA. The goal for the Committee is to reach consensus 
on the language or substance of appropriate rules. If a consensus is 
reached, it is used as the basis of the Commission's proposal. All 
procedural requirements of the Administrative Procedure Act (APA) and 
other applicable statutes continue to apply.
    4. When making a determination regarding the suitability of a 
proceeding for the negotiated rulemaking process, the Commission must 
consider whether:
    (a) There is a need for the rules to be developed;
    (b) There are a limited number of identifiable interests that will 
be significantly affected by the rules;
    (c) There is a reasonable likelihood that a committee can be 
converted with a balanced representation of persons who (1) can 
adequately represent the identifiable interests and (2) are willing to 
negotiate in good faith to reach a consensus on the proposed rules;
    (d) There is a reasonable likelihood that a committee will reach a 
consensus on the proposed rules within a fixed period of time;
    (e) The negotiated rulemaking procedure will not unreasonably delay 
the notice of proposed rulemaking and the issuance of final rules;
    (f) The agency has adequate resources and is willing to commit such 
resources, including technical assistance, to the committee, and
    (g) The agency will, to the maximum extent possible consistent with 
the legal obligations of the agency, use the consensus of the committee 
with respect to the proposed rules as the basis for the rules proposed 
by the agency for notice and comment. Negotiated Rulemaking Act Sec. 3, 
5 U.S.C. Sec. 583(a).

II. Subject and Scope of Rule for Negotiated Rulemaking

    5. The Commission proposes that the regulations specifying the 
requirements for hearing aid compatible telephones in all workplaces, 
hospitals, certain other health care facilities, prisons, hotels and 
motels be developed through negotiation. We believe that the selection 
criteria listed above are met. The suspension of enforcement of the 
Commission's HAC regulations must be clarified, removed, or modified in 
a further notice of proposed rulemaking. The parties whose interests 
are affected are identifiable from comments filed in this proceeding. 
We believe that these interests can be adequately represented on a 
committee, and that representatives will act in good faith to reach a 
consensus on technical rules within a prescribed time. We believe that 
the negotiated rulemaking process will use public and private resources 
more efficiently than the submission of additional written comments. We 
have adequate resources to commit to this endeavor and would use the 
consensus report of the committee to develop proposed rules.
    6. The Commission has identified the following primary issue that 
should be addressed in the negotiations and resolved in the proposed 
rules developed by the Committee:
    Whether to lift the suspension of enforcement of Sec. 68.112(b) 
(1), (3), and (5) of the Commission's rules and require that all 
telephones in all workplaces, hospitals, certain other health care 
facilities, prisons, hotels and motels be hearing aid compatible by a 
specific date.
    If the Negotiated Rulemaking Committee is able to reach consensus 
on the primary issue, we ask that it propose specific rules. We ask the 
Committee to provide an analysis of how the benefits of these proposed 
regulations outweigh other options. Specifically, we ask the Committee 
to explain and provide:
    --A definition of ``telephones provided for emergency use'' at the 
workplace, hotels, motels, and hospital facilities;
    --The timeline for implementing any new requirements, including 
whether establishments with fewer than 20 employees should be given 
additional time to comply with the requirements;
    --The costs and benefits of implementation;
    --Any other available data concerning the effects on economic 
growth expected to result from the implementation of the regulations;
    --The impact of its recommendations on access to telecommunications 
services;
    --An analysis of technological alternatives to HAC retrofitting; 
and
    --An analysis of: the general applicability of HAC requirements to 
cellular telephony; whether telephones in airplanes, trains automobiles 
and other non-traditional workplaces should be hearing aid compatible; 
and whether headset telephones should be hearing aid compatible.
    Other issues may be included by the parties.

III. Potential Interests and Participants

    7. The Commission has identified the following interests as those 
most likely to be significantly affected by the proposed rules:
    (a) Individuals and organizations representing small and large 
businesses, government agencies, universities, hospitals, hotels, 
motels, and non-profit institutions;
    (b) Equipment manufacturers and common carriers providing telephone 
service;
    (c) Advocates for persons with hearing disabilities.
    8. The following have tentatively been identified as potentially 
affected interests should the Commission proceed with a negotiated 
rulemaking: the Alexander Graham Bell Association; Utilities 
Telecommunications Counsel; the North American Telecommunications 
Association; the Direct Marketing Association; the National Center for 
Law and Deafness, Gallaudet University; Goodwill Industries of Seattle 
Washington; Telecommunications for the Deaf, Inc.; the United States 
Telephone Association; the National Association for the Deaf; Self Help 
for Hard of Hearing People; Southern New England Telephone Company; GTE 
Service Corporation; the American Speech-Language-Hearing Association; 
Maryland Office of People's Counsel; the New York League for the Hard 
of Hearing; Arizona Counsel for Hearing Impaired; the Association of 
Colleges and University Telecommunications Administrators; the 
International Telecommunications Association; the Food Marketing 
Institute; the American Petroleum Institute; the Tele-Communications 
Association; the National Retail Federation; the Newspaper Association 
of America; the National American Wholesale Grocers Association; the 
Equal Employment Advisory Council; the American Consulting Engineers 
Council; the New York Clearing House Association; and the Domestic 
Facilities Division, Common Carrier Bureau, Federal Communications 
Commission.

IV. Formation of the Negotiating Committee

A. Procedure for Establishing an Advisory Committee

    9. Under FACA, an Advisory Committee may be established only after 
consultation with the General Services Administration (GSA) and the 
filing of a charter with Congress. The Commission will prepare a 
charter and initiate the requisite consultation process prior to 
formation of the Committee and the commencement of negotiations.

B. Participants

    10. The number of participants in the group is estimated to be 
about 20 and should not exceed 25. A greater number of participants 
could make it difficult to conduct efficient negotiations. Each 
interest will have the opportunity to be adequately represented, 
although this does not necessarily mean that each potentially affected 
entity will have its own representative. Further, we must be satisfied 
that the group, as a whole, reflects a proper balance and mix of 
interests. In this respect, we are especially interested in receiving 
nominations to participate from public interest advocacy groups, user 
groups, and educators and academics.
    11. Entities that will be significantly affected by the proposed 
rules and that believe that their interests will not be adequately 
represented by any entity specified in paragraph 8 above, may apply 
for, or nominate another entity for, membership on the Committee. Each 
application for nomination must include:
    (a) The name of the applicant or nominee and a description of the 
interests the entity will represent,
    (b) Evidence that the applicant or nominee is authorized to 
represent parties related to the interests the entity proposes to 
represent,
    (c) A written commitment that the applicant or nominee shall 
actively participate in good faith in the development of the rules 
under consideration,
    (d) The reasons that the entities specified in paragraph 8 do not 
adequately represent the interests of the entity submitting the 
application or nomination.
    12. If, in response to this Notice, any additional entities request 
membership or representation in the negotiating group, the Commission 
will determine whether that entity should be added to the group. The 
Commission will make that decision based on whether the entity would be 
substantially affected by the rule and whether that entity is already 
adequately represented in the negotiating group.

C. Agenda

    13. If the Commission decides to establish a negotiating committee 
and its charter is approved, it is anticipated that the Committee's 
first meeting will take place later this year, at the Commission's 
offices, in Washington, DC, at a room, date, and time that will be 
announced. At this initial meeting, the Committee will complete action 
on all procedural matters and establish a target date for submission of 
its recommendations. We expect that the target date would be no later 
than 45 days from the initial meeting of the Committee. We anticipate 
adoption of a Further Notice of Proposed Rulemaking no later than 60 
days after the submission of the Committee's recommendations.

V. Negotiation Procedures

    14. The following procedures and guidelines will apply to the 
Committee, if formed. These procedures may be modified, however, after 
reviewing the comments received in response to this Notice or during 
the negotiation process.

A. Facilitator

    15. The Commission will nominate a person to serve as a neutral 
facilitator for the negotiations of the Committee, subject to the 
approval of the Committee by consensus. The facilitator will not be 
involved in the substantive development of the regulations. The 
facilitator's roles are to: (1) Chair negotiating sessions; (2) help 
the negotiation process run smoothly; (3) assist participants in 
defining and reaching a consensus; and (4) manage record-keeping and 
minute-keeping.

B. Good Faith Negotiations

    16. Since participants must be willing to negotiate in good faith, 
each organization--including the Commission--must designate a qualified 
individual to represent its interests. Linda B. Dubroof, Acting Branch 
Chief, Domestic Facilities Division, Common Carrier Bureau, will be the 
Commission's representative.

C. Meetings and Compensation

    17. Meetings will be held in the Washington, DC area at the 
convenience of the Committee. The Commission, if requested, will 
provide the facilities needed to conduct the meetings, and will provide 
any necessary technical support. Private sector members of the 
Committee will serve without government compensation or reimbursement 
of expenses. Private sector members will not be special government 
employees for any purposes whatsoever.

D. Committee Procedures

    18. Under the general guidance and direction of the facilitator, 
and subject to any applicable legal requirements, the members will 
establish the procedures for committee meetings.

E. Consensus

    19. The goal of the Committee is consensus. The Negotiated 
Rulemaking Act defines consensus as unanimous concurrence among the 
represented interests, although the Act permits the Committee to agree 
to another specified definition. In the event the Committee is unable 
to reach a consensus, the Committee may include in a report any other 
information, recommendations, or materials that the Committee considers 
appropriate, and any Committee member may include as an addendum to the 
report additional information, recommendations, or materials. Parties 
to the negotiation may withdraw at any time. If this happens, the 
remaining Committee members and the Commission will evaluate whether 
the Committee should continue.

F. Record of Meetings

    20. Pursuant to FACA, the Committee will keep a record of all 
committee meetings. This record will be placed in the public docket for 
this rulemaking (CC Docket No. 87-124). The Commission will announce 
committee meetings in the Federal Register. These meetings will be open 
to the public.

VI. Conclusion

    21. The Commission requests public comment on whether: (1) It 
should establish a Federal Advisory Committee, (2) it has properly 
identified the interests that are significantly affected by the key 
issues listed above, (3) the suggested committee membership reflects a 
balanced representation of these interests, and (4) regulatory 
negotiation is appropriate for this rulemaking.
    22. Pursuant to the applicable procedures set forth in Section 4(c) 
of the Negotiated Rulemaking Act of 1990, 5 U.S.C. Section 584(c), 
interested parties may file comments and nominations for Committee 
membership on or before thirty days from Federal Register publication 
of this notice. Comments and/or nominations should be sent to the 
Office of the Secretary, CC Docket No. 87-124, Federal Communications 
Commission, Washington, DC 20554. Comments and nominations will be 
available for public inspection during regular business hours in the 
Commission's Reference Center, Room 239, 1919 M St., NW., Washington, 
DC.
    23. For further information pertaining to the establishment of the 
negotiation committee and associated matters, contact John Walker, 
Common Carrier Bureau, 2025 M Street, NW., Washington, DC 20554, (202) 
634-1820 or (202) 632-0484 (TTY).
    24. Action by the Commission October 31, 1994, by Public Notice 
(FCC 94-280, released November 7, 1994) by Chairman Hundt, 
Commissioners Quello, Barrett, Ness, and Chong.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 94-28518 Filed 11-22-94; 8:45 am]
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