[Federal Register Volume 61, Number 224 (Tuesday, November 19, 1996)]
[Proposed Rules]
[Pages 58799-58800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29572]
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DEPARTMENT OF JUSTICE
28 CFR Part 100
RIN 1105-AA39
Implementation of Section 109 of the Communications Assistance
for Law Enforcement Act: Request for Comment on ``Significant Upgrade''
and ``Major Modification''
AGENCY: Federal Bureau of Investigation, DOI.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: This notice solicits from the telecommunication industry
information on and suggestions for dealing with the terms ``significant
upgrade'' and ``major modification'' as these terms are used in section
109 of the Communications Assistance for Law Enforcement Act (CALEA).
Specifically, the FBI seeks public comment on these terms with regard
to CALEA compliancy and cost reimbursement under CALEA section 109.
DATES: Comments must be received on or before December 19, 1996.
ADDRESSES: Comments should be submitted to the Telecommunications
Contracts and Audit Unit, Federal Bureau of Investigation, P.O. Box
221286, Chantilly, VA 20153-0450, Attention: CALEA FR Representative.
See Section D of the Supplementary Information for further information
on electronic submission of comments.
FOR FURTHER INFORMATION CONTACT: Walter V. Meslar, Unit Chief,
Telecommunications Contracts and Audit Unit, Federal Bureau of
Investigation, P.O. Box 221286, Chantilly, VA 20153-0450, telephone
number (703) 814-4900.
SUPPLEMENTARY INFORMATION:
A. General Background
Recent and continuing advances in telecommunications technology and
the introduction of new digitally-based services and features have
impaired the ability of federal, state, and local law enforcement
agencies to fully and properly conduct various types of court-
authorized electronic surveillance. Therefore, on October 25, 1994, the
President signed into law the Communications Assistance for Law
Enforcement Act (CALEA) (Public Law 103-414, 47 U.S.C. 1001-1010). This
law requires telecommunications carriers, as defined in CALEA, to
ensure that law enforcement agencies, acting pursuant to court order or
other lawful authorization are able to intercept communications
regardless of advances in telecommunications technologies.
Under CALEA, certain implementation responsibilities are conferred
upon the Attorney General; the Attorney General has, in turn, delegated
responsibilities set forth in CALEA to the Director, FBI, or his
designee, pursuant to 28 CFR 0.85(o). The Director, FBI, has designated
the Telecommunications Industry Liaison Unit of the Information
Resources Division and the Telecommunications Contracts and Audit Unit
of the Finance Division to carry out these responsibilities.
One of the CALEA implementation responsibilities delegated to the
FBI is the establishment, after notice and comment, of regulations
necessary to effectuate timely and cost-efficient payment to
telecommunications carriers for certain modifications made to
equipment, facilities and services (hereafter referred to as
``equipment'') to make that ``equipment'' compliant with CALEA.\1\
Section 109(b)(2) of CALEA authorizes the Attorney General, subject to
the availability of appropriations, to agree to pay telecommunications
carriers for additional reasonable costs directly associated with
making the assistance capability requirements found in section 103 of
CALEA reasonably achievable with respect to ``equipment'' installed or
deployed after January 1, 1995, in accordance with the procedures
established in section 109(b)(1) \2\ of CALEA. Section 104(e) of CALEA
authorizes the Attorney General, subject to the availability of
appropriations, to agree to pay telecommunications carriers for
reasonable costs directly associated with modifications of any of a
carrier's systems or services, as identified in the Carrier Statement
required by CALEA section 104(d), which do not have the capacity to
accommodate simultaneously the number of interceptions, pen registers,
and trap and trace devices set forth in the Capacity Notice(s)
published in accordance with CALEA section 104. Finally, section 109(a)
of CALEA authorizes the Attorney General, subject to the availability
of appropriations, to agree to pay telecommunications carriers for all
reasonable costs directly associated with the modifications performed
by carriers in connection with ``equipment'' installed or deployed on
or before January 1, 1995, to establish the capabilities necessary to
comply with the assistance capability requirements found in section 103
of CALEA. However, reimbursement under section 109(a) of CALEA is
modified by the requirements of section 109(d), which states:
\1\ CALEA Sec. 109(e).
\2\ CALEA Section 109(b)(1) sets forth the procedures and the
criteria the Federal Communications Commission (FCC) will use to
determine if the modifications are ``reasonably achievable''.
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If a carrier has requested payment in accordance with procedures
promulgated pursuant to subsection (e) [Cost Control Regulations],
and the Attorney General has not agreed to pay the
telecommunications carrier for all reasonable costs directly
associated with modifications necessary to bring any equipment,
facilities, and services installed or deployed on or before January
1, 1995, into compliance with the assistance capability requirements
of section 103, such equipment, facility, or service shall be
considered in compliance with the assistance capability requirements
of section 103, until the equipment, facility, or service is
replaced or significantly upgraded or otherwise undergoes major
modification.
(emphasis added).
While this section deals specifically with a carrier's compliance with
CALEA, the phrase ``replaced or significantly upgraded or otherwise
undergoes major modification'' (hereafter referred to as ``significant
upgrade or major modification''), depending on a carrier's actions
after January, 1995, also has a direct bearing on the eligibility for
reimbursement of some ``equipment'' installed or deployed on or before
January 1, 1995.\3\
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\3\ ``Significant upgrade or major modification'' also appears
in CALEA Sec. 108(c)(3)(B) with regard to the limitations placed
upon the issuance of enforcement orders under 18 U.S.C. 2522.
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B. Proposed Cost Reimbursement Rule
As required by CALEA Sec. 109(e), the FBI published a proposed
CALEA cost reimbursement rule (NPRM) for notice and comment in the
Federal Register on May 10, 1996 (61 FR 21396). The NPRM proposed
procedures which telecommunications carriers would follow in order to
receive reimbursement under Sections 109(a), 109(b)(2) and 104(e) of
CALEA, as discussed above. Specifically, the NPRM set forth the means
of
[[Page 58800]]
determining allowable costs, reasonable costs, and disallowed costs.
Furthermore, it established the requirements carriers must meet in
their submission of cost estimates and requests for payment to the
Federal Government for the disbursement of CALEA funds. Finally, the
NPRM sought to ensure the confidentiality of trade secrets and to
protect proprietary information from unnecessary disclosure.
Of particular interest for the purposes of this Advance Notice of
Proposed Rule Making (ANPRM) is section 100.11(a)(1) of the NPRM, which
included in the costs eligible for reimbursement under section 109(e)
of CALEA:
All reasonable plant specific costs directly associated with the
modifications performed by carriers in connection with equipment,
facilities, and services installed or deployed on or before January
1, 1995, to establish the capabilities necessary to comply with
section 103 of CALEA, until the equipment, facility, or service is
replaced or significantly upgraded or otherwise undergoes major
modifications . . .
(emphasis added).
In response to the NPRM, the FBI received comments from 16
representatives of the telecommunications industry, including wireline
and wireless carriers and associations. Of the 16 sets of comments
received on the proposed rule, half requested that the FBI define
``significant upgrade or major modification'' as used in
Sec. 100.11(a)(1) of the NPRM.
Given the dynamic nature of the telecommunications industry and the
potential impact on eligibility for reimbursement, the FBI acknowledges
that ``significant upgrade or major modification'' must be defined.
However, this issue affects only those carriers who have made some form
of modification, other than routine maintenance, or upgrade to their
``equipment'' which was installed or deployed on or before January 1,
1995. The reimbursement eligibility of ``equipment'' which has
undergone no modification or upgrade since January 1, 1995 is not
affected by this definition. In addition, ``significant upgrade or
major modification'' does not pertain to cases of reimbursement for
capability modifications which have been deemed not reasonably
achievable by the FCC under CALEA section 109(b)(2) or to reimbursement
for capacity modifications under CALEA section 104(e). Therefore, given
that many of the potential reimbursement scenarios allowed by CALEA,
and, therefore, by the NPRM, are not affected by the definition of
``significant upgrade and major modification,'' the FBI has elected to
handle this issue separately in order to expedite the CALEA
implementation process. This decision is in both the best interests of
the government and of the carriers given that CALEA funds are now
available to begin the reimbursement effort.\4\ Severing the
``significant upgrade or major modification'' issue from the NPRM for
separate consideration will allow the FBI to go forward in finalizing
the rest of the NPRM, thereby allowing the FBI as soon as possible to
begin reimbursing those carriers who have made no modifications or
upgrades since January 1, 1995. With regard to the rest of the NPRM,
the FBI has considered all comments submitted and anticipates
publication of the final rule for CALEA cost reimbursement (exclusive
of a definition of ``significant upgrade or major modification'') in
the first quarter of calendar year 1997.
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\4\ Public Law 104-208, Item 28: (16) ``Telecommunications
Carrier Compliance Fund.''
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C. ``Significant Upgrade'' and ``Major Modification''
In addition to the need for expedition in finalizing the CALEA cost
reimbursement rule, the FBI has determined that it is in the best
interests of all parties concerned that the FBI solicit further input
from the telecommunications industry and the general public in order to
resolve this issue. Therefore, the FBI requests that telecommunications
carriers and other interested parties submit potential definitions of
``significant upgrade or major modification'' in response to this
ANPRM. Committed to the consultative process and to maintaining an on-
going dialogue with the telecommunications industry, the FBI seeks to
draw on the expertise of that industry so that it may gain an
understanding of the range of options available with regard to
``significant upgrade or major modification.''
It should be noted that the comment period for this ANPRM is 30
days. The FBI has elected to use a reduced comment period in order to
expedite the CALEA implementation process, particularly with regard to
``significant upgrade and major modification.'' Given the concerns
expressed by the commenters on NPRM, the FBI has reason to believe that
the telecommunications industry wishes for a rapid resolution to the
issue.
Once the FBI has received comments in response to the ANPRM, it
will determine the best means of promulgating the definition of
``significant upgrade and major modification.'' Furthermore, after
making this determination and developing a definition, the FBI will
address the comments received in some form in the Federal Register at a
later date.
D. Electronic Submission of Comments
While printed comments are welcome, commenters are encouraged to
submit their responses on electronic media. Electronic documents must
be in WordPerfect 6.1 (or earlier version) or Microsoft Word 6.0 (or
earlier) format. Comments must be the only file on the disk. In
addition, all electronic submissions must be accompanied by a printed
sheet listing the name, company or organization name, address, and
telephone number of an individual who can replace the disk should it be
damaged in transit. Comments under 10 pages in length can be faxed to
the Telecommunications Contracts and Audit Unit, Attention: CALEA FR
Representative, fax number (703) 814-4730.
(Authority: 47 U.S.C. 1001-1010; 28 CFR 0.85(o))
Dated: November 12, 1996.
Louis Freech,
Director, Federal Bureau of Investigation, Department of Justice.
[FR Doc. 96-29572 Filed 11-18-96; 8:45 am]
BILLING CODE 4410-02-M
