Implementation of Section 109 of the Communications Assistance for Law Enforcement Act: Request for Comment on ``Significant Upgrade'' and ``Major Modification''

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

R 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

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

ers 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).

led 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

rectly 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

on 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''

efinition 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

e

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]

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