FCC Importer Certification Changes Should Reflect Limited Role of Brokers, Says NCBFAA

A Federal Communications Commission proposal to remove device certification requirements for importers needs some language changes to avoid unintended regulatory issues, said the National Customs Brokers & Forwarders Association of America. The trade group submitted its comments (here) to the agency on Sept. 21 in response to FCC plans to eliminate the import declaration filing requirements on FCC Form 740. While generally in favor of the proposed changes, some language tweaks are necessary to distinguish between the parties involved in import transactions, said the NCBFAA.

Although the FCC intends to remove requirements for FCC-specific declaration or filing upon import (see 1508110024), the proposed language "does not accurately capture this shift," said the NCBFAA. As proposed, "no radio frequency device may be imported into the Customs territory of the United States unless the importer or ultimate consignee, or their designated customs broker, determines that the device meets one of the conditions of entry." But "without a declaration to affix responsibility in each instance, it will be unclear exactly who made the determination," the NCBFAA said. "If the responsible party for making the determination could be any of three entities (i.e., the importer, the ultimate consignee or the customs broker, as the proposed regulation suggests), there is no certainty for the FCC or the trade as to which party is responsible for documenting how the radio frequency device was determined to be in compliance. This leaves a potentially significant gap in affixing responsibility."

Customs brokers shouldn't even be among the entities considered able to make such a "determination," the group said. Brokers help facilitate imports, but lack the specific knowledge of a "product's design or manufacture to render such a judgment." and "our limited role as an intermediary does not give us the capability to make a determination about the technical aspects of a product," said the NCBFAA.

The need to remove customs brokers from the list of responsible parties would be even more necessary if the FCC stops issuing tariff-based flags to alert the filer that the product is or may be subject to FCC requirements, as expected, said the NCBFAA. "A filer will not have knowledge of the device or the need for FCC compliance," the group said. For example "a ski jacket is ordinarily not thought of as an FCC-regulated product, but "if it contains an RF device in the lining to act as a beacon during an avalanche, then it is subject to FCC requirements," the NCBFAA said. "The customs broker/filer may very well not be aware of the RF device in the lining or the need for FCC compliance."

Despite those concerns, "we agree with your decision to eliminate the filing of FCC Form 740 (Import Declaration) at the time of entry," the group said. Much the information submitted in the FCC form is already submitted to CBP as part of the entry process, it said. While fewer than 100 forms a month were filed when the form became a requirement, an estimated 2 million are filed annually today, said the NCBFAA. "By 2020, an estimated 26 billion devices may be subject to FCC jurisdiction as the Internet of Things expands, making the Form 740 filing a burdensome requirement that appears to us to yield few enforcement benefits for the FCC."