[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Proposed Rules]
[Pages 9850-9856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4562]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 15

[ET Docket Nos. 10-23; 07-96; 06-216; FCC 10-14]


Tank Level Probing Radars in the Frequency Band 77-81 GHz

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document the Commission proposes to modify its rules 
to allow tank level probing radar (TLPR) devices to operate in the 77-
81 GHz frequency band on an unlicensed basis under the provisions of 
part 15 of the Commission's rules. Specifically, the Commission 
proposes to modify Sec.  15.205 of the rules to remove the prohibition 
on intentional emissions in the 77-81 GHz band for TLPR devices used in 
closed storage tanks and vessels made of metal, concrete, or material 
with similar attenuating characteristics, at fixed locations at 
petroleum and chemical production and storage facilities, and similar 
commercial and industrial sites. The Commission believes that its 
proposals will enable the development and deployment of high frequency 
technology that operates more effectively and reliably than existing 
tank level measuring radar technology in certain applications where 
precision measurements are needed, and in certain tanks which cannot 
now accommodate existing technology. The Commission believes that, with 
appropriate restrictions, such high frequency TLPR devices can operate 
on an unlicensed basis without causing harmful interference to 
authorized services in the 77-81 GHz band.

DATES: Comments must be filed on or before June 2, 2010, and reply 
comments must be filed on or before July 2, 2010.

ADDRESSES: You may submit comments, identified by ET Docket Nos. 10-23; 
07-96 and 06-216, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail: [Optional: Include the E-mail address only if you 
plan to accept comments from the general public]. Include the docket 
number(s) in the subject line of the message.
     Mail: [Optional: Include the mailing address for paper, 
disk or CD-ROM submissions needed/requested by your Bureau or Office. 
Do not include the Office of the Secretary's mailing address here.]
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION of this document.

FOR FURTHER INFORMATION CONTACT: Anh Wride, Office of Engineering and 
Technology, (202) 418-0577, e-mail: [email protected], TTY (202) 418-
2989.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making and Order, ET Docket Nos. 10-23; 07-96; and 06-
216, FCC 10-14, adopted January 14, 2010, and released January 19, 
2010. The full text of this document is available for inspection and 
copying during normal business hours in the FCC Reference Center (Room 
CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text 
of this document also may be purchased from the Commission's copy 
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, 
CY-B402, Washington, DC 20554. The full text may also be downloaded at: 
http://www.fcc.gov.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8 a.m. to 7 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes must be disposed of before 
entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300

[[Page 9851]]

East Hampton Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

Summary of Notice of Proposed Rulemaking

    In the Notice of Proposed Rule Making (NPRM), the Commission 
proposes to modify its rules to allow the 77-81 GHz frequency band to 
be used for the operation of TLPR equipment installed inside closed 
storage tanks made of metal, concrete or other material with similar 
attenuating characteristics. The Commission proposes a limit of +43 dBm 
on the transmitter's peak equivalent isotropically radiated power 
(EIRP) and +23 dBm on the transmitter's average EIRP levels for 
fundamental emissions when measured in a laboratory setting, i.e., not 
installed in a tank. The Commission proposes to limit the radiated 
emissions from a TLPR device, when installed in representative tanks of 
each material type, to the general radiated emission limits for 
intentional radiators in Sec.  15.209(a) of our rules when measured 
outside of the TLPR tank enclosure in any direction and at any 
frequency below 200 GHz. The Commission proposes that installation of 
TLPR devices be limited to commercial usage in fixed locations. It 
further proposes that in order to receive certification, the device be 
subjected to a compliance test procedure that includes (a) testing of 
the transmitter's characteristics (fundamental emissions and emissions 
at band edges, etc.); and (b) radiated emission testing of the radar 
installed inside representative storage tanks for each type of tank 
material. The Commission believes that these proposals have the 
potential to foster the development of a variety of tank level radar 
measuring products that will benefit industry by providing better 
accuracy and reliability in target resolution to identify critical 
levels of materials such as fuel, water, sewer treated waste and high 
risk substances, thereby reducing storage tank overflow and spilling 
while minimizing exposure of maintenance personnel to high risk 
materials. These proposals would promote greater utility for the 77-81 
GHz band without increasing the interference risk to authorized 
services in the band.
    Additionally, the Commission is waiving Sec.  15.205(a) of our 
rules, subject to certain conditions, to allow Siemens Milltronics 
Process Instruments Inc. (Siemens), Ohmart/VEGA Corp. (Ohmart/VEGA), 
and any other responsible party marketing equipment that complies with 
these conditions (e.g., Endress+Hauser GmbH+Co. KG (Endress+Hauser)) to 
manufacture, certify, and market TLPR devices in the 77-81 GHz band for 
a period of two years or until 180 days following the adoption of a 
Report and Order in this proceeding, whichever is longer. This action 
will allow the new TLPR technology to be utilized in the near term 
while the Commission considers modifying the general part 15 rules.
    Siemens filed a Petition for Rulemaking requesting that the 
Commission amend its rules to allow TLPR devices to operate in the 
restricted 77-81 GHz frequency band. The Commission issued a Public 
Notice soliciting comments on Siemens's request on December 6, 2006. 
Ohmart/VEGA and Krohne America, Inc. (Krohne) filed comments that 
generally supported Siemens petition. Krohne suggests that the 
Commission should consider allowing TLPR devices to operate in a larger 
portion of the spectrum, i.e., 75-85 GHz band, to harmonize with 
European rules for such devices.
    Concurrent with its rulemaking petition, Siemens filed a request 
for waiver of Sec.  15.209(a) to allow TLPR operation in the 78-79 GHz 
frequency band, subject to certain conditions. Ohmart/VEGA and Krohne 
filed in support of the Siemens' request. Subsequently, Ohmart/VEGA 
also filed a request for waiver of Sec.  15.209(a) to allow TLPR 
operation in the 77-81 GHz band, subject to certain conditions. 
Endress+Hauser filed in support of the Ohmart/VEGA waiver request and 
asked that it be granted the same relief. The National Radio Astronomy 
Observatory (NRAO) states that it would not object to the Ohmart/VEGA 
waiver if it
    Frequency Band of Operation. Authorized operations in the 77-81 GHz 
band currently include radio astronomy (Federal and non-Federal at 76-
85 GHz), radiolocation (Federal and non-Federal at 76-77.5 GHz and 78-
81 GHz), space research (Federal and non-Federal at 74-84 GHz), amateur 
(non-Federal at 76-81 GHz), and amateur satellite (non-Federal at 77-81 
GHz). These services typically employ highly directional antennas 
because propagation loss is significant over short distances at these 
frequencies.
    The Commission believes that the proposed TLPR operation will not 
cause harmful interference to incumbent services in the 77-81 GHz band, 
based on several factors. First, the general emission limits are 39.6 
dB below the emission levels that the Commission previously determined 
is sufficient to prevent harmful interference in this frequency range. 
Second, emissions in this band should attenuate more rapidly than the 
rate predicted by free space propagation due to the greater attenuating 
effects on radio waves from oxygen, water and any intervening objects 
at these frequencies; thus, the risk for harmful interference is 
minimal. Third, TLPR devices would be installed inside tanks which 
attenuate the radiated emissions so that they would not exceed our 
general emission limits outside of the tank. Further, because TLPR 
antennas would be pointing down toward the material inside closed 
storage tanks, side beam leakage should be minimal given the tank 
enclosure's attenuation coefficient and the absorption characteristics 
of the material to be measured (liquid or solid); thus, reflected 
signals should be contained within the tank. Finally, the Commission is 
proposing certain operational conditions (regarding emission limits, 
tank materials, and site locations) that would further reduce the 
likelihood of harmful interference to authorized services. Accordingly, 
the Commission believes that TLPR devices would be able to share 
spectrum with authorized services in the 77-81 GHz band, and it seeks 
comment on what impact, if any, our proposal to allow TLPR operations 
in this band would have on authorized services.
    Regarding radio astronomy, the Commission observes that NRAO 
submitted comments in response to the Ohmart/VEGA petition to request 
special considerations to protect radio astronomy services, such as a 
mandatory 2 kilometer distance separation, between any permanent TLPR 
installation and radio astronomy site. Although radio astronomy has a 
primary allocation in the entire 77-81 GHz band proposed for TLPR 
operations, the Commission notes that, the part 15 rules currently 
allow spurious emissions approximately 39.6 dB higher than the radiated 
emission limit allowed in Sec.  15.209 which the Commission proposes to 
apply to TLPR devices. In addition, vehicle radars, which are subject 
to the higher emission limits, are more likely to be operating in the 
vicinity of radio astronomy sites than TLPR devices in tanks at fixed 
locations. The Commission already

[[Page 9852]]

determined that the higher spurious emissions would not result in 
harmful interference, even without requiring a minimum separation 
distance from radio astronomy sites; operation at a level 39.6 dB lower 
also should not be a source of harmful interference. Furthermore, radio 
astronomy stations manage the RF systems used on their properties, and 
thus they may choose to exclude TLPR devices on their properties. The 
Commission further notes that TLPR devices currently operate under the 
general non-interference requirements of Sec.  15.5 of our rules as 
would those proposed in this NPRM. Under these rules, the operator of a 
TLPR device is responsible for eliminating any harmful interference 
that may occur or must cease operation upon notification by a 
Commission representative that the device is causing harmful 
interference. Thus, the Commission believes that radio astronomy sites 
would be sufficiently protected. Accordingly, it tentatively concludes 
that it is not necessary to require any separation distance between a 
TLPR installation and a radio astronomy site. The Commission seeks 
comment on this tentative conclusion.
    The 75-85 GHz frequency band encompasses many more incumbent 
licensed operations than the 77-81 GHz band requested by Siemens. In 
addition to those services authorized in the 77-81 GHz band identified, 
the authorized services in the 75-85 GHz band include fixed/mobile/
fixed satellite (Federal and non-Federal at 74-76 GHz and 81-85 GHz), 
mobile satellite (Federal and non-Federal at 81-84 GHz), and broadcast 
and broadcast satellite (non-Federal at 74-76 GHz). In addition, 
unlicensed vehicle radars are allowed to operate in the 76-77 GHz band. 
Krohne notes that these regions of the spectrum are similarly allocated 
in Europe and in the U.S., and ETSI studies have shown that there is 
little risk of interference from devices which emit at or below the 
general emission limits for unlicensed radiators. Moreover, Krohne 
states that TLPR antennas, by design, are directed downward and operate 
only inside of tank structures which further reduce any risk of harmful 
interference to other spectrum users. Accordingly, Krohne believes that 
there is little reason for the Commission not to consider adopting the 
same spectrum policies for TLPR devices as those that are being 
followed in Europe. The Commission seeks comment on whether it should 
allow TLPR devices to operate in the 75-85 GHz band, including what 
impact, if any, such operations would have on authorized users in the 
band. The Commission invites commenters to submit into the record any 
technical studies on the feasibility of allowing TLPR devices to 
operate in the 75-85 GHz frequency band.
    Radiated emission limits. Siemens requests that the Commission 
establish a peak EIRP level of +43 dBm for fundamental emissions for 
TLPR devices at 77-81 MHz, with 10 dB attenuation requirement at band 
edges and 20 dB attenuation requirement for peak spurious emissions. 
Siemens proposes that when a TLPR device is installed in a storage 
tank, the radiated emissions outside the TLPR tank enclosure at any 
frequency in the range of 40 to 250 GHz be limited to a level of -41.3 
dBm/MHz, which is an equivalent isotropically radiated power (``EIRP'') 
level that approximates the general radiated emission limits for 
intentional radiators under Sec.  15.209(a) of the rules. Siemens 
states that protection of co-channel users as well as other spectrum 
users in the harmonically related bands is assured by compliance of the 
TLPR device with the part 15 requirement for intentional radiators 
(i.e., attenuated to an EIRP level of -41.3 dBm/MHz), as measured in-
situ outside the tank, and by attenuation of emissions at band edges 
and spurious emissions, as measured on tests on the radar transmitter 
by itself.
    As requested by Siemens, the Commission proposes to allow TLPR 
devices to operate in the 77-81 GHz band at a maximum peak EIRP of +43 
dBm. It is also proposing a maximum average EIRP of +23 dBm. This is 
consistent with the existing provision in our rules which specifies a 
limit on peak power that is 20 dB greater than the average limit. The 
Commission also proposes to require that when the radar is installed 
inside a storage tank, the device shall comply with the general 
radiated emission limits in Sec.  15.209(a), in any direction outside 
the tank enclosure. The Commission proposes to apply the field strength 
emission limits in Sec.  15.209(a), rather than the limit on EIRP 
requested by the petitioners to regulate emissions radiated from the 
enclosure. The specification of a limit based on EIRP is appropriate 
when discussing the level of emissions from a transmitter. However, the 
Commission believes that the levels of emissions radiated from an 
enclosure are more accurately characterized by a field strength 
specification. The Commission seeks comment on the proposals.
    Siemens suggests limits on radiated emissions outside the TLPR tank 
enclosure at any frequency in the range 40 GHz to 250 GHz. The 
Commission notes that its current part 15 rules require measurements of 
a transmitter from the lowest fundamental frequency up to the fifth 
harmonic or 200 GHz, whichever is lesser. Measuring above 200 GHz, as 
Siemens proposes, could require additional specialized measurement 
instrumentation which may not be readily available. The Commission 
seeks comments on potential problems that might be encountered in 
measuring emissions above 200 GHz. It further notes that if a radar 
transmitter generates any radio frequency signals below 40 GHz, e.g., 
if it contains digital circuitry such as a microprocessor, our rules 
require that measurements be made at frequencies lower than Siemens' 
proposed 40 GHz lower limit. Similar requirements would apply to 
digital circuitry associated with the radar's receiver. As such, the 
Commission believes that the part 15 rules concerning emissions above 
and below 40 GHz are adequate for TLPR devices and do not think that it 
is necessary to extend the upper measurement frequency to 250 GHz from 
200 GHz. The Commission seeks comments on this tentative conclusion.
    Radar Technique. The Commission observes that currently TLPR 
devices typically use either pulsed radar waves or frequency-modulated 
continuous waves (FMCW). In pulsed radars, short duration pulses are 
transmitted toward the target and the target distance is calculated 
using the transit time. In FMCW radars, a continuous frequency-
modulated signal is transmitted, and the frequency difference caused by 
the time delay between transmission and reception indicates the target 
distance. The Commission believes that there should be no restriction 
to the type of radar technique used by the device, because the radar 
technique used does not appear to affect the interference potential of 
the device, as long as the device is compliant with the emission 
limits. The Commission notes that ETSI does not differentiate between 
radar equipment using FMCW or pulse in its standard. The Commission 
therefore proposes to make available the 77-81 GHz frequency band for 
use by TLPR devices incorporating any radar technique, subject to the 
operational restrictions discussed in the NPRM. The Commission seeks 
comment on this proposal.
    Operational Restrictions. The Commission proposes to require that 
TLPR devices in the 77-81 GHz band be installed in tanks made of metal, 
concrete or material of similar characteristics that attenuate radiated 
emissions to the levels we proposed. It also proposes to require that a 
TLPR device be operated only when the tank

[[Page 9853]]

is closed. The Commission notes that in allowing the emission levels 
for the transmitter, the ETSI standard specifically states that the 
TLPR device must be installed in closed metallic tanks or reinforced 
concrete tanks, or similar enclosure structures made of material with 
comparable attenuating characteristics. In closed tanks made of metal 
or concrete material, the main emissions outside the tank typically 
result only from the leakage of the escaping radar signal through the 
transmitter enclosure or through the mounting flange of the TLPR 
devices. However, if the tank is open when the radar is operating, the 
radar signal can escape through any such opening. The Commission also 
observes that there is a large difference in attenuation coefficient 
between metal/concrete and plastic or fiberglass material. The 
Commission is therefore concerned that an open tank or a tank made of 
material other than metal and/or concrete may allow higher leakage of 
the radar signals through any opening and through the tank walls, which 
could potentially cause harmful interference to other radio services. 
The Commission seeks comment on these proposals to restrict the types 
of tanks these devices can be installed in.
    While the Commission is proposing to restrict the types of tank 
materials to metal and concrete, it is also requesting comment on 
Siemens' request that the Commission allow the tank enclosure to be of 
any material type (e.g., plastic, fiberglass, etc.) The Commission 
notes that at the proposed +23 dBm EIRP average transmitted level, the 
TLPR signal must be attenuated by at least 64.3 dB in order to meet the 
equivalent -41.3 dBm EIRP of Sec.  15.209 radiated emission limit of 
500 [micro]V/m at 3 meters. The Commission therefore seeks comment on 
whether it should also allow installation of TLPR devices in tanks made 
of other types of material of lesser attenuation coefficient, including 
open-air installations, and if so, what additional measures it should 
adopt to ensure that TLPR devices installed in such enclosures comply 
with the limit for radiated emissions outside the tank. Comments should 
address what additional limitations the Commission should place on such 
use and any supplemental parameters and measurement procedures it 
should consider. For example when other tank materials are employed, 
should a more stringent EIRP limit be imposed on the radar transmitter, 
and how can it be demonstrated that the material employed provides 
sufficient attenuation to ensure that the emissions do not exceed the 
limits in Sec.  15.209?
    The Commission also proposes to limit installations of TLPR devices 
to fixed locations in commercial or industrial environments to minimize 
proximity to authorized services operating in the same frequency band. 
It seeks comment on this proposal.
    Compliance Testing. Siemens suggests a 2-tiered testing approach to 
ensure compliance of TLPR devices. It proposes that we require the 
transmitter's output power to be tested to show compliance with the 
emission limits both in-band and at band edges and with unwanted 
emission limits. It further proposes that we require that the tank 
assembly be tested with the transmitter installed inside a 
representative storage tank at three representative customer's sites 
for in-situ testing. Ohmart/VEGA suggests that testing for compliance 
with the limits when the TLPR is installed inside the tank could be 
performed at an open area test site (OATS) as well, rather than in-situ 
at customers' sites. The Commission observes that testing the tank 
assembly at a test site raises a question of the types of tanks that 
can be provided by the testing organization, and whether they would be 
representative enclosures of comparable dimensions. It notes that ETSI 
allows the use of a metallic test tank at a test site. On the other 
hand, in-situ testing would require compliance tests to be performed on 
a representative tank made of each material type at three 
representative sites (e.g., a representative metallic tank at three 
representative sites, a representative concrete tank at three 
representative sites, etc.), which could prove burdensome to the 
applicant depending on the various enclosure types that are intended to 
be used with the radar.
    The Commission proposes to require that TLPR devices be subjected 
to a compliance test procedure that includes (a) testing of the 
transmitter's characteristics (fundamental emissions and emissions at 
band edges, etc.); and (b) radiated emission testing of the radar 
installed inside representative storage tanks for each type of tank 
material. The Commission seeks comment on this proposal. It also seeks 
comment on whether testing should be performed in-situ with the radar 
installed inside representative storage tanks at three installations 
for each type of tank material or if the in-situ testing could be 
replaced by measuring the attenuation characteristics of the type of 
material proposed to be used for the tank; and performing a radiated 
emission test at an open area test site (OATS) to demonstrate that the 
emissions that emanate from any part of the transmitter which is 
external to the tank, i.e., the portion of the transmitter that is not 
shielded by the tank material, comply with the Sec.  15.209 emission 
limits in all directions. This alternative procedure would substitute 
for in-situ measurements, reducing the burden for the applicant, while 
ensuring that the system complies with the applicable emission limits.
    The Commission also proposes to require that TLPR devices designed 
to operate in the 77-81 GHz band be approved under the Commission's 
certification procedures and that certification be performed by the 
Commission rather than by Telecommunications Certification Bodies 
(TCB). Because a standard test procedure for TLPR devices has not yet 
been devised, this will enable the Commission to develop appropriate 
measurement guidelines for devices operating in this frequency band. 
After the Commission has developed measurement guidelines and gained 
experience with these devices, it may allow certification by the TCBs. 
The Commission seeks comment on this proposal.
    The Commission is also granting waivers of the restriction on 
spurious emissions in the 77-81 GHz band set forth in Sec.  15.205(a) 
to Siemens, Ohmart/VEGA, and any other responsible party (e.g., 
Endress+Hauser) that meets the waiver conditions specified in this 
NPRM. The Commission finds that a waiver of the spurious emissions 
restriction of Sec.  15.205(a) as requested by these petitioners will 
serve the public interest because it will allow deployment of TLPR 
devices with improved accuracy and reliability and will reduce risks 
caused by overfilling and accidental spillage of storage tanks, while 
the Commission considers modifying our general part 15 rules in the 
rulemaking proceeding that it is initiating. The Commission concludes 
that, with appropriate operational and technical restrictions, a waiver 
of the restriction on intentional emissions in Sec.  15.205(a) can be 
granted for a limited time pending the conclusion of our rule making 
without increasing the potential for harmful interference, and is 
therefore in the public interest. These findings apply equally to the 
requests of Siemens and Ohmart/VEGA.
    The Commission exempts TLPR devices from the restriction on 
intentional emissions in the 77-81 GHz band, it is requiring them to 
comply with our existing average radiated emissions limit for devices 
operating above 960 MHz, i.e., 500 [micro]V/m or the equivalent of -
41.3 dBm/MHz EIRP, as

[[Page 9854]]

measured at 3 meters. Further, the Commission requires that TLPR 
devices mandated and operated under the waiver meet all part 15 
requirements, except for Sec.  15.205(a), including the 20 dB peak-to-
average requirement of Sec.  15.35(b) which is also a controlling 
factor on peak emissions.
    Accordingly, with the exception of Sec.  15.205(a), the Commission 
will require TLPR devices operating under this waiver to comply with 
all applicable standards of part 15. The Commission further finds that 
allowing controlled deployments of TLPR devices operating under the 
waiver at fixed locations at industrial sites in metal or reinforced 
concrete storage tanks will serve the public interest by providing a 
reliable means of protecting the environment and the safety of 
employees in industrial processes from the risks of accidental spillage 
and exposure to high risk materials. These areas would include those 
that are critical to the country's infrastructure, such as 
petrochemical and nuclear plants. Deployment of TLPR devices will 
enhance the security procedures of these areas, thereby facilitating 
homeland security efforts. The Commission will limit TLPR devices 
operating under this waiver to closed tanks made of metal or concrete 
only, for the reasons elaborated in conjunction with our proposed rule 
changes.
    In addition, the storage tanks in which the TLPR devices are to be 
mounted will be at fixed locations, thus increasing the likelihood that 
they will be located away from and thus not likely to interfere with 
authorized users in the band. Further, since TLPR installations will be 
limited to commercial/industrial applications, the Commission believes 
that such installations will be maintained by trained professionals, as 
noted by Siemens. Finally, the Commission finds that our compliance 
test procedure will provide assurance that not only the TLPR device's 
design itself meets the fundamental emissions and spurious emissions 
requirements in our rules, but that the installation (TLPR device and 
storage tank) also comply with the rules. The Commission therefore 
concludes that the operational restrictions constitute good controlling 
factors on the scope and scale of use of TLPR devices operating under 
this waiver, thus minimizing their impact on authorized radio users in 
the band.
    The Commission has already determined that spurious emissions at 
39.6 dB higher than the limit in Sec.  15.209 would not result in 
harmful interference, even without separation requirements from radio 
astronomy sites. Further, NRAO states that it does not expect that TLPR 
devices will cause harmful interference to radio astronomy. The 
Commission believes that any concerns that NRAO has in this regard are 
adequately addressed with the other operational restrictions it is 
imposing (e.g., fixed location, commercial/industrial applications) and 
if harmful interference does occur despite our expectation to the 
contrary, the TLPR device will be required to be shut down.
    With respect to Ohmart/VEGA's offer to maintain a database of TLPR 
installations, we note that Siemens did not make a similar offer. The 
Commission recognizes that TLPR devices operating under this waiver 
will be fixed installations at commercial or industrial locations, 
where there likely would be few, if any, radio astronomy sites. 
Although the Commission believes that interference to radio astronomy 
is very unlikely under these conditions, it nonetheless will require 
that, for the duration of the waiver, Siemens and Ohmart/VEGA maintain 
lists of TLPR installations that will be available to the Commission in 
the event that an interference complaint is raised by an authorized 
user. Because customer information is competitively sensitive, the 
Commission will not require that the lists be publicly available.
    The Commission will not limit the number of TLPR installations 
during the waiver period, as Ohmart/VEGA offers. It is imposing a 
number of conditions on TLPR operation that reduces the likelihood of 
interference, e.g., fixed location, closed tank operation, metal or 
reinforced concrete storage tanks, and commercial/industrial locations.
    The Commission will allow other responsible parties, such as 
Endress+Hauser, to request certification of TLPR devices in the 77-81 
GHz band, provided they meet the conditions described in the Order for 
operation in these bands. The certification application shall state 
that the party is seeking approval under the terms and conditions of 
the Order, and approved devices will be subject to these terms and 
conditions. If a responsible party cannot attest that its TLPR device 
meets the terms and conditions of this Order, the Commission will not 
consider its certification application unless that party has requested 
a waiver of applicable rules.
    Accordingly, for a period of two years or for a period of 180 days 
following the adoption of a Report and Order in this proceeding, 
whichever is longer, the Commission is waiving the intentional 
emissions restriction of Sec.  15.205(a) to allow any TLPR manufacturer 
to obtain FCC certification for its TLPR devices to operate in the 77-
81 GHz band subject to compliance with the following provisions:
    (1) The TLPR device shall comply with all the technical 
specifications applicable to operation under part 15 of 47 CFR with the 
exception of Sec.  15.205(a), and shall be certified by the Commission.
    (2) The TLPR device shall be subjected to compliance testing to 
demonstrate that:
    i. The TLPR device's fundamental emissions shall comply with a peak 
radiated EIRP limit of +43 dBm and an average EIRP limit of +23 dBm in 
the 77-81 GHz band.
    ii. Emissions from the device appearing outside of the 77-81 GHz 
band shall be attenuated to at least 20 dB below the highest level of 
the fundamental emission. The -20 dB bandwidth of the device must be 
contained within the 77-81 GHz band, under all conditions of operation 
including the effects from pulsing or other modulation techniques that 
may be employed as well as the frequency stability of the transmitter 
over the temperature range -20 to +50 degrees Celsius and an input 
voltage variation of 85% to 115% of rated input voltage.
    iii. When installed in a storage tank, emissions radiated in any 
direction from the TLPR shall not exceed the general limits in Sec.  
15.209 of the rules. Testing in a storage tank shall be performed on 
each type of representative tank.
    (3) The TLPR device shall be installed in storage tanks made of 
metal, concrete or material with similar attenuating characteristics 
only. The tank shall be closed when the radar device is operating. Care 
shall be taken to ensure that gaskets, flanges, and other openings are 
sealed to eliminate signal leakage outside of the structure.
    (4) The TLPR device shall be installed only at fixed locations.
    (5) The applicant shall maintain a record of installations of the 
devices it operates or sells under this waiver, including the identity 
of the customer and the address or geographical coordinates of each 
installation, for the duration of the waiver. This record shall be made 
available to the Commission upon request.

Ordering Clauses

    Pursuant to Sec. Sec.  1, 4(i), 303(f), 303(g), and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(g), 
and 303(r), the Notice of Proposed Rule Making is adopted and the 
Petition for Rule Making by Siemens Milltronics Process Instruments, 
Inc.

[[Page 9855]]

filed on November 3, 2006, is hereby granted to the extent described 
herein.
    Pursuant to authority in Sec.  1.3 of the Commission's rules, 47 
CFR 1.3, and Sec. Sec.  4(i), 302, and 303(e), of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 302, and 303(e), the Request 
for Waiver filed by Siemens Milltronics Process Instruments, Inc. filed 
on November 3, 2006, is granted, consistent with the terms of this 
Order. This action is effective upon release of the Order.
    Pursuant to authority in Sec.  1.3 of the Commission's rules, 47 
CFR 1.3, and Sec. Sec.  4(i), 302, and 303(e), of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 302, and 303(e), the Request 
for Waiver filed by Ohmart/VEGA Corp. filed on April 30, 2007, is 
granted in part and denied in part consistent with the terms of the 
Order. This action is effective upon release of the Order.
    Pursuant to authority delegated in Sec.  0.241 of the Commission's 
rules, 47 CFR 0.241, the Office of Engineering and Technology may 
approve equipment certification applications consistent with the terms 
and conditions of the waivers granted by the Order for any responsible 
party that attests and demonstrates in its application that it seeks 
approval under and satisfies the terms and conditions of the Order.
    The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of the Notice of 
Proposed Rule Making and Order, including the Initial Regulatory 
Flexibility Analysis to the Chief Counsel for Advocacy of the Small 
Business Administration.

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), the Commission has prepared this present Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in the NPRM. Written public comments are requested on this 
IRFA. Comments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments provided on the first page of the 
NPRM. The Commission will send a copy of the NPRM, including this IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration 
(SBA).

A. Need for, and Objectives of, the Proposed Rules

    The rule making proposal was initiated to obtain comments regarding 
proposed changes to the regulations for radio frequency devices that do 
not require a license to operate. The Commission seeks to determine if 
the standards should be amended to permit intentional emissions in the 
77-81 GHz by tank level probing radars (TLPR) to provide better 
accuracy and reliability in target resolution to identify critical 
levels of materials such as fuel, water and sewer treated waste and 
high risk substances. Specifically, we propose to allow intentional 
emissions in the 77-81 GHz restricted band for TLPR devices used in 
closed storage tanks and vessels made of metal, concrete or comparable 
material, at petroleum and chemical production and storage facilities 
and similar industrial sites. The Commission believes that our 
proposals herein would enable TLPR devices to provide better accuracy 
and reliability in target resolution to identify critical levels of 
materials such as fuel, water and sewer treated waste and high risk 
substances. The proposed amendments to our rules will permit these 
devices to operate effectively and reliably, reducing storage tank 
overfill and spilling while minimizing exposure of maintenance 
personnel to high risk materials, all without increasing the risk of 
interference to authorized services.

B. Legal Basis

    The proposed action is taken pursuant to Sec. Sec.  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.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA.
    Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: all such firms having 
750 or fewer employees. According to Census Bureau data for 2002, there 
were a total of 1,041 establishments in this category that operated for 
the entire year. Of this total, 1,010 had employment of under 500, and 
an additional 13 had employment of 500 to 999. Thus, under this size 
standard, the majority of firms can be considered small.
    Wireless Service Providers. The SBA has developed a small business 
size standard for wireless firms within the two broad economic census 
categories of ``Paging'' and ``Cellular and Other Wireless 
Telecommunications.'' Under both categories, the SBA deems a wireless 
business to be small if it has 1,500 or fewer employees. For the census 
category of Paging, Census Bureau data for 2002 show that there were 
807 firms in this category that operated for the entire year. Of this 
total, 804 firms had employment of 999 or fewer employees, and three 
firms had employment of 1,000 employees or more. Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small. For the census category of Cellular and 
Other Wireless Telecommunications, Census Bureau data for 2002 show 
that there were 1,397 firms in this category that operated for the 
entire year. Of this total, 1,378 firms had employment of 999 or fewer 
employees, and 19 firms had employment of 1,000 employees or more. 
Thus, under this second category and size standard, the majority of 
firms can, again, be considered small.
    The Commission does not expect that the rules proposed in the NPRM 
will have a significant negative economic impact on small businesses.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    Part 15 transmitters already are required to be authorized under 
the Commission's certification procedure as a prerequisite to marketing 
and importation. The reporting and recordkeeping requirements 
associated

[[Page 9856]]

with these equipment authorizations would not be changed by the 
proposals contained in this Notice. The changes to the regulations 
would permit operation of radar devices used in specific industrial 
applications in a higher frequency band (77-81 GHz).

E. Federal Rules That May Duplicate, Overlap or Conflict With the 
Proposed Rules

    None.

List of Subjects in 47 CFR Part 15

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission
Marlene H. Dortch,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 15 to read as 
follows:

PART 15--RADIO FREQUENCY DEVICES

    1. The authority citation for part 15 continues to read as follows:

    Authority:  47 U.S.C. 154, 302(a), 303, 304, 307, 336 and 544a.

    2. Section 15.205 is amended by revising paragraph (d)(4) to read 
as follows:


Sec.  15.205  Restricted bands of operation.

* * * * *
    (d) * * *
    (4) Any equipment operated under the provisions of Sec.  15.253, 
Sec.  15.255, Sec.  15.256 or Sec.  15.257 of this part.
* * * * *
    3. Section 15.256 is added to read as follows:


Sec.  15.256  Operation within the band 77-81 GHz.

    (a) Operation within the 77-81 GHz band is limited to tank level 
probing radars (TLPR) under the provisions of this section.
    (1) TLPR transmitters must be operated only while mounted inside 
storage tanks or similar structures with antennas directed downward. 
Such storage structures shall be made of metal, concrete or other 
material with substantially similar attenuating characteristics. The 
tank shall be closed during the operation of the intentional radiator. 
Care shall be taken to ensure that gaskets, flanges, and other openings 
are sealed to eliminate signal leakage outside of the structure.
    (2) Storage tanks or structures housing a TLPR device shall be 
installed only in fixed locations and in commercial or industrial 
environments.
    (b) The emission levels shall not exceed the following:
    (1) Within the 77-81 GHz band, the equivalent isotropically 
radiated power (EIRP) of the TLPR transmitter without the storage tank 
shall not exceed +43 dBm peak and +23 dBm average.
    (2) Emissions appearing outside of the 77-81 GHz band shall be 
attenuated to at least 20 dB below the highest level of the fundamental 
emission. The -20 dB bandwidth of the device must be contained within 
the 77-81 GHz band under all conditions of operation including the 
effects from pulsing or other modulation techniques that may be 
employed as well as the frequency stability of the transmitter over the 
temperature range -20 to +50 degrees Celsius and an input voltage 
variation of 85% to 115% of rated input voltage.
    (3) Emissions radiated in any direction from the TLPR while 
installed in the storage tank or enclosure shall not exceed the general 
limits in 15.209 of this part.
    (4) Compliance measurements for TLPR devices shall be made in 
accordance with the measurement guidelines specified by the Commission 
for TLPR devices operating in the 77-81 GHz band.

[FR Doc. 2010-4562 Filed 3-3-10; 8:45 am]
BILLING CODE 6712-01-P