1902 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

total of $125,000 in financial assurance,

in case Trinity does not fulfill its

obligations.

The Department of Justice will

receive, for a period of thirty (30) days

from the date of this publication,

comments relating to the proposed

consent decree. Comments should be

addressed to the Assistant Attorney

General for the Environment and

Natural Resources Division, Department

of Justice, Washington, DC 20530, and

should refer to United States v. Western

Crude Reserves, Inc. et al., DOJ Ref.

#90–112–859.

The proposed consent decree may be

examined at the office of the United

States Attorney, 1441 Main Street, Suite

500 Columbia, South Carolina (803)

929–3000; the Region IV Office of the

Environmental Protection Agency, 100

Alabama Street, SW, Atlanta, Georgia

30303; and at the Consent Decree

Library, 1120 G Street, NW., 4th Floor,

Washington, DC 20005, (202) 624–0892.

A copy of the proposed consent decree

may be obtained in person or by mail

from the Consent Decree Library, 1120

G Street, NW., 4th Floor, Washington,

DC 20005. In requesting a copy please

refer to the referenced case and enclose

a check in the amount of $6.25 (25 cents

per page reproduction costs), payable to

the Consent Decree Library.

Joel M. Gross,

Chief, Environmental Enforcement Section,

Environment and Natural Resources Division.

[FR Doc. 97–799 Filed 1–13–97; 8:45 am]

BILLING CODE 4410–15–M

Federal Bureau of Investigation

Implementation of Section 104 of the

Communications Assistance for Law

Enforcement Act

AGENCY: Federal Bureau of Investigation

(FBI).

ACTION: Second Notice and request for

comments.

SUMMARY: The FBI is providing a second

notification of the requirements for

actual and maximum capacity of

communication interceptions, pen

register and trap and trace device-based

interceptions that telecommunications

carriers may be required to conduct to

support law enforcement’s electronic

surveillance needs, as mandated in

section 104 of the Communications

Assistance for Law Enforcement Act

(CALEA). On October 16, 1995, the FBI

published an Initial Notice for comment

(60FR53643); and on November 9, 1995,

the comment period was extended until

January 16, 1996. After reviewing the

comments received, the FBI is issuing

this Second Notice for comment.

DATES: Written comments must be

received on or before February 13, 1997.

ADDRESSES: Comments should be

submitted in triplicate to the

Telecommunications Industry Liaison

Unit (TILU), Federal Bureau of

Investigation, P.O. Box 220450,

Chantilly, VA 20153–0450.

FOR FURTHER INFORMATION CONTACT:

Contact TILU at (800) 551–0336. Please

refer to your question as a capacity

notice question. Because the appendices

referred to in this Notice are

voluminous, they are not contained

herein but are available in a public

reading room located at Federal Bureau

of Investigation Headquarters, 935

Pennsylvania Ave. N.W., Washington,

D.C. 20535. To review the appendices,

interested parties should contact Ms.

Eloise Lee at FBI Headquarters,

telephone number (202) 324–3476, to

schedule an appointment (48 hours in

advance).

I. Background

A. Purpose of CALEA

On October 25, 1994, President

Clinton signed into law the

Communications Assistance for Law

Enforcement Act (CALEA) (Public Law

103–414, 47 U.S.C. 1001–1010). Its

objective is to make clear a

telecommunications carrier’s duty to

cooperate in the interception of

communications for law enforcement

purposes. (For purposes of this notice,

the word ‘‘interception’’ refers to the

interception of both call-content and

call-identifying information.) CALEA

was enacted to preserve law

enforcement’s ability, pursuant to court

order or other lawful authorization, to

access call-content and call-identifying

(pen registers and trap and trace)

information in an ever-changing

telecommunications environment.

In 1968 when Congress statutorily

authorized court-ordered electronic

surveillance, there were no

technological limitations on the number

of interceptions that could be

conducted. However, the onset of new

and advanced technologies has begun to

erode the ability of the

telecommunications industry to support

law enforcement’s interception needs.

To preserve communications

interception as a vital investigative tool,

the Congress determined that

technological solutions must be

employed necessitating greater levels of

assistance from telecommunications

carriers.

The intent of CALEA is to define and

clarify the level of technical assistance

required from telecommunications

carriers. CALEA does not alter or

expand law enforcement’s fundamental

statutory authority to conduct

interceptions. It simply seeks to ensure

that after law enforcement obtains legal

authority, telecommunications carriers

will have the necessary technical ability

to fulfill their statutory obligation to

accommodate requests for assistance.

B. Capacity Notice Mandate

Because many future interceptions

will be fulfilled through equipment

controlled by telecommunications

carriers, CALEA obligates the Attorney

General to provide carriers with

information they will need (a) to be

capable of accommodating the actual

number of simultaneous interceptions

law enforcement might conduct as of

October 25, 1998, and (b) to size and

design their networks to accommodate

the maximum number of simultaneous

interceptions that law enforcement

might conduct after October 25, 1998.

(Although actual and maximum

capacity determinations represent

estimates for October 25, 1998, and

thereafter, telecommunications carrier

compliance with capacity requirements

is, by terms of CALEA, required by 3

years after issuance of the Final Notice.)

These two information elements are

referred to in CALEA as ‘‘actual’’ and

‘‘maximum’’ capacity requirements. In

accordance with section 104 of CALEA,

the FBI, which has been delegated

CALEA implementation responsibilities

from the Attorney General, must

provide notice of law enforcement’s

future actual and maximum capacity

requirements. The statute defines these

requirements as follows:

For actual capacity: The actual

number of communication

interceptions, pen registers, and trap

and trace devices, representing a portion

of the maximum capacity, that the

Attorney General estimates that

government agencies authorized to

conduct electronic surveillance may

conduct and use simultaneously by the

date that is 4 years after the date of

enactment of CALEA.

For maximum capacity: The

maximum capacity required to

accommodate all of the communication

interceptions, pen registers, and trap

and trace devices that the Attorney

General estimates that government

agencies authorized to conduct

electronic surveillance may conduct and

use simultaneously after the date that is

4 years after the date of enactment of

CALEA.

Although CALEA requires the

Attorney General to estimate the actual

number of communication
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1903

interceptions, pen registers and trap and

trace devices that may be required

simultaneously as of October 25, 1998

and thereafter, the estimates are not a

reflection of the number of interceptions

expected to occur. Indeed, law

enforcement has no estimate or

expectations about how many

interceptions will occur. The number of

interceptions that actually occur will be

determined by authorized law

enforcement investigations at the time.

Under CALEA, telecommunications

carriers are required to have an actual

capacity available for immediate use 3

years after issuance of a Final Notice.

Maximum capacity, on the other hand,

is a capacity level that

telecommunications carriers must be

able to accommodate ‘‘expeditiously’’ if

law enforcement’s needs increase in the

future. The time frame for ‘‘expeditious’’

expansion to maximum capacity was

not specified in CALEA. However, law

enforcement typically maintains

ongoing liaison with

telecommunications carriers serving

their areas. Such liaison facilitates the

needed technical capability and

capacity to be prearranged, thereby

ensuring that the interception can begin

as soon as the legal authorization is

received. Such liaison is critical because

electronic surveillance interceptions are

by their very nature time sensitive. Law

enforcement considers five business

days from receipt of a court order by a

telecommunications carrier to be a

reasonable period of time to allow for

incremental expansion up to the

maximum capacity on an as-needed

basis. This time frame is based on the

time typically involved under existing

procedures used by law enforcement

and telecommunications carriers to

make technical arrangements.

The term ‘‘expeditious,’’ as used

herein, applies to section 104 capacity

requirements regarding incremental

expansion up to the maximum capacity.

It should not be confused with

‘‘expeditious access’’ to call-content and

call-identifying information as used in

section 103 of CALEA, which pertains

to the assistance capability

requirements.

Law enforcement has interpreted the

maximum capacity chiefly as a

requirement that telecommunications

carriers will follow to size a capacity

ceiling. This ceiling is intended to

provide telecommunications carriers

with a stable framework for costeffectively designing future capacity

into their networks. It also would

provide room for accommodating future

interception-related ‘‘worst-case

scenarios.’’ Establishing the maximum

capacity will allow telecommunications

carriers to assist law enforcement during

serious, unpredictable emergencies

requiring unusual levels of interception.

Consistent with CALEA, this Second

Notice identifies the number of

simultaneous interceptions that a

telecommunications carrier should be

able to accommodate in a given

geographic area as of the date that is

three years after the date of the Final

Notice of Capacity and thereafter. An

interception relates to accessing and

delivering all communications (callcontent) and/or call-identifying

information associated with the

telecommunications service of the

subject specified in a court order or

lawful authorization. The

telecommunications service targeted for

interception includes all of the services

and features associated with the

subject’s wireline/wireless telephone

number, or as otherwise specified in the

court order or lawful authorization.

For a call content-based interception,

a carrier is responsible for accessing and

delivering all communications and callidentifying information supported by

the subject’s telecommunications

service, regardless of the advanced

services or features to which the subject

subscribes (e.g., a redirected call

through call forwarding); and

notwithstanding that the subject may be

engaged in more than one

communication (e.g., a subject is

engaged in a voice telephone call and

simultaneously sends a fax or data

transmission; a subject is engaged with

several (different) parties in a

conference call and simultaneously

communicates with a non-conferenced

party).

For an interception of call-identifying

information, a carrier is responsible for

accessing and delivering all callidentifying information related to the

communications caused to be generated

or received by the subject, regardless of

the advanced services or features to

which the subject subscribes and

notwithstanding that the subject may be

engaged in more than one simultaneous

communication. The fact that a subject

utilizes advanced services and features

as part of his/her telecommunications

service or is capable of sending or

receiving more than one communication

simultaneous does not mean that carrier

access and delivery of each constitutes

a separate interception. Consequently,

telecommunications carriers need to

ensure that, regardless of their solutions

(which may be varied), the solution

permits access and delivery of all the

communications and call-identifying

information for each interception.

Because of this circumstance, and

because CALEA forbids the government

from dictating solutions, law

enforcement will be available to consult

with carriers as they develop solutions

and apply the capacity requirements to

their particular solutions.

In some instances a

telecommunications carrier may be able

to meet the assistance capability

requirements without modifying its

equipment, facilities, or services. As a

practical matter, conventional methods

of effectuating interceptions of callcontent and call-identifying

information, such as loop extender

technologies, may meet the

requirements of CALEA for some

subjects of court-ordered interceptions,

depending on the types of services and

features, etc., to which the subject

subscribes. Telecommunications

carriers that presently meet these

requirements under the circumstances

described above will be in compliance

until the equipment, facility, or service

is replaced or significantly upgraded or

otherwise undergoes major

modification. Furthermore,

telecommunications carriers that cannot

meet the assistance capability

requirements may still be considered to

be in compliance if the Government

does not provide cost recovery for

modifications to equipment, facilities,

and services installed or deployed on or

before January 1, 1995. Such carriers

will also be in compliance with CALEA

until such time as they significantly

upgrade or replace or otherwise undergo

major modification to equipment,

facilities, or services.

C. Initial Notice of Capacity

On October 16, 1995, law

enforcement’s proposed future actual

and maximum capacity requirements

were presented in an Initial Notice

published in the Federal Register as

mandated by section 104 of CALEA.

Comments on the Initial Notice were

accepted through January 16, 1996. The

Initial Notice and the comments on it

are summarized in section V of this

notice.

D. Second Notice of Capacity

Since the release of the Initial Notice,

law enforcement has consulted with

telecommunications industry

representatives, privacy advocates, and

other interested parties to receive

feedback on the method used to express

future actual and maximum capacity

requirements. This consultative process

has helped law enforcement understand

the challenges facing the industry and

others in appling the capacity

requirements. After deliberation, law

enforcement concluded that it should
1904 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

issue a Second Notice for comment in

order to refine its original approach.

After the instant comment period

closes, a complete record will be

delineated and a Final Notice will be

issued that fulfills the obligations of the

Attorney General under section

104(a)(1) of CALEA.

Telecommunications carriers will have

180 days after publication of the Final

Notice in the Federal Register to submit

a Carrier Statement as mandated by

section 104(d) to the Government

identifying any of its systems or services

that do not have the capacity to

accommodate law enforcement’s

requirements (see section IV infra).

CALEA applies to all

telecommunications carriers as defined

in section 102(8). Notices will

eventually be issued covering all

telecommunications carriers. However,

this Second Notice and its associated

Final Notice should be viewed as a first

phase applicable to telecommunications

carriers offering services that are of most

immediate concern to law

enforcement—that is, those

telecommunications carriers offering

local exchange services and certain

commercial mobile radio services,

specifically cellular service and

personal communications service (PCS).

(For the purpose of this notice, PCS is

considered a service operating in the

licensed portion of the 2 GHz band of

the electromagnetic spectrum, from

1850 MHZ to 1990 MHZ.

Telecommunications carriers offering

local exchange services are referred to

hereafter in this notice as ‘‘wireline’’

carriers, and telecommunications

carriers offering cellular and PCS

services are referred to as ‘‘wireless’’

carriers.

The exclusion from this notice of

certain other telecommunications

carriers that have services deployed

currently or anticipate deploying

services in the near term does not

exempt them from any obligations

under CALEA. Law enforcement will

consult with these other

telecommunications carriers before

subsequent Notices are issued and

applicable capacity requirements are

established. Law enforcement also looks

forward to consulting with these other

telecommunications carriers to develop

a reasonable method for characterizing

capacity requirements.

II. Methodology for Projecting Capacity

Requirements

A. Overview

The CALEA mandate set forth in

section 104 obligates the Attorney

General to estimate future interception

capacity requirements and marks the

first time that (a) information has been

required to be provided to

telecommunications carriers in order for

them to design future networks with

reference to the amount of potential

future interception activity that may

occur, and (b) the entire law

enforcement community has been

required to project its collective future

potential needs for interception. This

new circumstance has generated

legitimate concern in the law

enforcement community, because

telephone technology historically

placed no constraints on the number of

court-ordered interceptions that could

be effected. If not implemented

carefully, an under-scoping of capacity

requirements under CALEA could have

the unintended effect of restricting the

technical ability to conduct

interceptions authorized in court orders.

If future interception needs are

understated, law enforcement’s

investigative abilities will be hampered

and, more important, public safety will

be jeopardized.

Capacity provisions were included in

CALEA to ensure that law enforcement’s

future interception needs can be met in

a way that will not be unduly

burdensome for telecommunications

carriers. These provisions also present a

means for telecommunications carriers

to better understand the nature and

extent of their existing statutory

obligations to accommodate law

enforcement’s interception needs.

(Since law enforcement requirements

for all types of interceptions are a

function of authorized investigations,

the estimated number that may be

conducted cannot be zero since that

would imply that there is a county or

market service area where an

interception could not be conducted.

See section G ‘‘Establishing Threshold

Capacity Requirements’’ for further

discussion on how minimum capacities

are estimated.) To derive capacity

requirements that would meet law

enforcement’s future interception needs

without being unduly burdensome, law

enforcement used a rigorous

methodology. The objective was to

ensure that law enforcement’s future

capacity requirements would (a) be

based on historical interception activity,

(b) ensure that public safety is not

compromised, (c) provide

telecommunications carriers with a

degree of certainty regarding law

enforcement’s needs over a reasonable

period of time, (d) be based on the

geographic areas affected, and (e) not

dictate a solution to the industry.

The methodology consisted of these

steps:

• Collecting information on historical

interception activity.

• Determining geographic areas for

identifying capacity requirements.

• Deriving a basis for determining

capacity requirements for wireline

carriers.

• Deriving a basis for determining

capacity requirements for wireless

carriers.

• Deriving growth factors for

projecting future capacity requirements

from historical information.

• Establishing threshold capacity

requirements.

B. Collecting Information on Historical

Interception Activity

To comply with CALEA’s mandate to

project future capacity needs, law

enforcement believed it was essential to

first establish a historical baseline of

interception activity from which future

interception needs could be projected.

This effort entailed a detailed review

and analysis of the available

information on recent federal, state, and

local law enforcement interceptions

throughout the United States. Such

information had never before been

collected in a single repository.

Amassing this detailed and extremely

sensitive information required an

unprecedented and time-consuming

effort. It involved identifying sources

from which accurate information could

be retrieved efficiently. The information

required included the numbers of all

types of interceptions (communications,

pen register, and trap and trace)

performed by federal, state, and local

law enforcement agencies, in terms of

the actual number of telephone lines

intercepted at each locality. (For

purposes of this notice, the work ‘‘line’’

refers to the transmission path from a

subscriber’s terminal to the network via

a wireline or wireless medium.)

The Wiretap Report, published

annually by the Administrative Office of

the United States Courts, was a valuable

source of historical information on

criminal Title III (call-content) court

orders; however, it did not identify the

actual number of interception lines

associated with each court order or,

more important, the vastly greater

number of lines associated with callidentifying interceptions (pen register

and trap and trace) that have been

performed by all law enforcement

agencies. Even though law enforcement

used information on the number of

court orders reported in the Wiretap

Report for forecasting purposes as

described subsequently in this section,

the report does not contain the

necessary line-related information

needed to identify the level of past
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1905

interceptions for establishing a

historical baseline of activity.

To obtain line-related information

regarding past simultaneous

interceptions, records of interception

activity were acquired from

telecommunications carriers, law

enforcement officials, and what was

most important, from the federal and

state Clerks of Court offices (the official

repositories for all interception court

orders) through a survey.

The objective of the survey effort was

to determine the numbers of all types of

interceptions (communications, pen

register, and trap and trace) conducted

between January 1, 1993, and March 1,

1995, for all geographic areas. Highly

sensitive information pertaining to each

interception was collected, including

interception start/end dates and area

code and exchange. The time period of

January 1, 1993 to March 1, 1995 was

chosen to obtain recent interception

information that was reasonably

retrievable given the time constraint

imposed by CALEA with regard to

publishing a Notice of Capacity.

Approximately 1,500

telecommunications carriers,

representing nearly all wireline and

cellular telephone companies (as of

March 1995), were requested to provide

information that would identify where

and how many interceptions had

occurred within their networks during

the period surveyed. Records were

submitted by approximately 66 percent

of the telecommunications carriers

surveyed. To ensure receipt of

information from a comprehensive

representation of the

telecommunications industry, law

enforcement worked closely with

telecommunications carriers serving

large markets or unique geographic

areas. Such carriers included the

Regional Bell Operating Companies

(RBOCs), GTE, and the largest providers

of cellular service.

Sensitive interception records

maintained under seal within the Clerks

of Court offices were acquired through

two separate efforts. Federal court order

information was collected under special

court orders directing the unsealing of

this information for the limited purpose

of issuing capacity notices required

under section 104 of CALEA. State and

local law enforcement records were

collected with the assistance of the

offices of the State Attorney Generals

and District Attorneys or state wide

prosecutors. This effort resulted in the

collection of information on all federal

law enforcement interception activity

for the period surveyed and information

on interceptions by state and local law

enforcement from most states. (Some

states’ laws do not authorize the

conduct of all types of interceptions,

e.g., call-conduct interceptions, and

other states do not maintain retrievable

records of all historical interception

activity.)

C. Determining Geographic Areas for

Identifying Capacity Requirements

Section 104(a)(2)(B) of CALEA

requires law enforcement to identify, to

the maximum extent practicable, the

capacity needed at ‘‘specific geographic

locations.’’ In addressing this mandate,

law enforcement decided that using

point-specific sites, such as switch

locations, city blocks, or neighborhoods,

would not be appropriate because it

would not properly take into account

movement in criminal activity and

could lead to the compromise of

sensitive investigations. Also, law

enforcement believed that any

geographic designation used should not

be subject to frequent change, should

relate to discernible and officially

recognized geographic territorial

boundaries, and should be commonly

understood by the affected parties.

It was also considered essential that

the geographic designations be ones that

(a) historically have not been affected by

regulatory changes in the

telecommunications marketplace, (b)

would allow flexibility for

telecommunications carriers in

developing solutions, and (c) would not

be affected by changes in the

configurations of telecommunications

networks.

Law enforcement concluded that, for

wireline carriers, county boundaries or

their equivalent best met the criteria

above and should be used to define the

geographic locations for projecting

future capacity requirements. (For

purposes of this notice, the term

‘‘county’’ includes boroughs and

parishes, as well as the District of

Columbia and a few independent cities

in Missouri, Maryland, Nevada, and

Virginia that are not part of any county.

U.S. territories such as American

Samoa, Guam, the Mariana Islands,

Puerto Rico, and the U.S. Virgin Islands

are treated similarly.) Further, using the

geographic designation of a county in

this way was deemed appropriate

because it is used by both

telecommunications carriers and law

enforcement. Telecommunications

carriers pay county taxes and fees and

are affected by county regulations.

Likewise, law enforcement’s legal

territorial jurisdictions frequently are

drawn based on county boundaries, and

resources for law enforcement are often

allocated on a county basis.

For wireless carriers, individual

county boundaries were not considered

to be a feasible geographic designation

for identifying capacity requirements.

Instead, law enforcement determined

that wireless market service areas—

Metropolitan Statistical Areas (MSAs),

Rural Service Areas (RSAs), Major

Trading Areas (MTAs), and Basic

Trading Areas (BTAs)—would be the

most appropriate geographic

designations. Although wireless market

service areas comprise sets of counties,

the use of such market service areas best

takes into account the greater inherent

mobility of wireless subscribers.

Furthermore, what is most important is

that historical information on wireless

interceptions could only be associated

with market service areas.

The approach selected—using

counties for wireline carriers and

market service areas for wireless

carriers—was also responsive to

comments on the Initial Notice urging

that the two types of

telecommunications carriers be treated

separately; thus, different geographic

designations should appropriately

apply.

D. Deriving a Basis for Determining

Capacity Requirements for Wireline

Carriers

Having established the county as the

appropriate geographic area for

identifying capacity requirements for

wireline carriers, law enforcement had

to decide on a basis for determining

capacity requirements for each county.

Section 104(a)(2)(A) of CALEA stated

that the capacity requirements could be

based on type of equipment, type of

service, number of subscribers, type or

size of carrier, or nature of service area,

but allowed the use of ‘‘any other

measure.’’ Law enforcement chose to

use the historical interception activity

associated with telecommunications

equipment located within a county as

the most logical basis for making

determinations about projected capacity

requirements in a county.

Each wireline interception reported

during the historical period surveyed

(January 1, 1993, to March 1, 1995) was

associated with a telecommunications

switch, based on its area code and

exchange (frequently referred to as its

‘‘NPA/NXX code’’) as found in the April

1995 version of the Local Exchange

Routing Guide (LERG) published by

Bellcore. The LERG contains

information on the switching systems

and exchanges of wireline carriers and

is considered to be an authoritative

source in the telecommunications

industry. Thereafter,

telecommunications switches were
1906 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

associated to counties by using the

vertical and horizontal coordinates

marking the switch’s physical location.

CALEA also required that capacity

requirements be expressed in terms of

‘‘simultaneous’’ interceptions. Law

enforcement chose to consider

interceptions occurring on the same

day, rather than at exactly the same

moment, as being simultaneous. This

time frame was logical from a law

enforcement perspective, because

interception court orders are authorized

for a certain number of days as opposed

to some other unit of time Additionally,

the time frame of 1 day was compatible

with the historical data that was

recorded only by days.

The daily interception activity of each

switch in a county was examined, and

the single day with the most

interceptions during the period

surveyed was used to identify the

switch’s highest number of

simultaneous interceptions. Thereafter,

the highest number of simultaneous

interceptions identified for each switch

in the country was totaled to produce a

historical baseline for the county. Law

enforcement believed that this approach

provided a reasonable representation of

past interception needs for the

geographic area during the period

surveyed. This approach also avoided

the problems that would be inherent in

trying to specify capacity requirements

for interceptions on a site-specific or

equipment-specific basis because of the

fluid nature of interceptions conducted

over time and because of changes in

equipment and the services that they

support. After determining the county’s

historical baseline, law enforcement

sought to establish an appropriate

means of utilizing that activity as a basis

for projecting future capacity

requirements. In the Initial Notice,

capacity requirements were expressed

as a percentage of the engineered

capacity of equipment, facilities, and

services. It was thought that in so doing,

some flexibility would be beneficial to

carriers in addressing the capacity

requirements. Comments on the Initial

Notice, however, questioned the

meaning of engineered capacity and

recommended that capacity

requirements be expressed as fixed

numbers rather than as percentages. In

response, law enforcement re-examined

this issue and found that using fixed

numbers for each county would be a

clear way to express capacity

requirements without tying them to the

constantly changing components of the

telecommunications network.

E. Deriving a Basis for Determining

Capacity Requirements for Wireless

Carriers

Having established the market service

area as the appropriate geographic area

for identifying future capacity

requirements for wireless carriers, law

enforcement had to decide on a basis for

determining capacity requirements for

each market. Each cellular interception

reported during the period surveyed

(January 1, 1993 to March 1, 1995) was

associated with a cellular market service

area using the August 1995 version of

the Cibernet database, which contains

information on roaming and billing

arrangements for cellular networks and

is considered to be an authoritative

source in the telecommunications

industry. Thereafter, the single day with

the most interceptions during the period

surveyed was identified and used to

establish the historical baseline for the

market service area.

Due to the similarities between

cellular and PCS, law enforcement used

the historical interception activity of

cellular carriers to develop projections

of future capacity requirements for PCS

carriers. Cellular markets are defined by

MSAs and RSAs, and PCS markets are

defined by MTAs and BTAs. Historical

cellular interception activity was

mapped to a PCS market service area.

Again, the single day with the most

interceptions during the period

surveyed was identified and used to

ascribe to it a historical baseline for the

market service area.

To be responsive to comments on the

Initial Notice objecting to the use of

percentages of engineered capacity, law

enforcement found that using numbers

rather than percentages was also an

appropriate means by which to express

capacity requirements for wireless

carriers.

F. Deriving Growth Factors for

Projecting Future Capacity

Requirements From Historical

Information

Section 104 of CALEA requires the

Attorney General to project future

requirements for actual and maximum

capacity. As discussed previously in

this notice, law enforcement derived a

baseline for these estimates from the

historical interception activity in

geographic areas defined as counties for

wireline carriers and market service

areas for wireless carriers during the

period surveyed. To project future

capacity requirements, growth factors

were developed and applied to the

historical information.

As noted, comments on the Initial

Notice recommended that capacity

requirements be stated separately for

wireline and wireless carriers. In

response, law enforcement created new

formulas based on a revised set of

growth factors that took account of this

distinction.

1. Formulas

As discussed below, four growth

factors are used in this Second Notice in

formulating future capacity

requirements: Awireline, Awireless, Mwireline,

and Mwireless. The ‘‘A’’ factors were

applied to historical interception

activity to estimate future actual

capacity requirements as of October

1998, the ‘‘M’’ factors were used to

estimate future maximum capacity

requirements.

The formulas are as follows:

Wireline: Future Actual Capacity

Requirement in a County Equals The

Historical Interception Activity in the

County Multiplied by Awireline.

Future Maximum Capacity

Requirement in a County Equals The

Future Actual Capacity Requirement in

the County Multiplied by Mwireline.

Wireless: Future Actual Capacity

Requirement in a Market Service Area

Equals The Historical Interception

Activity in the Market Service Area

Multiplied by Awireless.

Future Maximum Capacity

Requirement in a Market Service Area

Equals The Future Actual Capacity

Requirement in the Market Service Area

Multiplied by Mwireless.

All the resulting requirements for

future actual and maximum capacity

were rounded up to the next whole

number.

2. Growth Factors

The growth factors used herein were

derived solely from analysis related to

the historical interception information.

Three sources of historical information

were deemed to provide relevant

information to be considered as growth

factors: (a) the number of court orders

for call-content interceptions which was

obtained from the Wiretap Reports

published by the Administrative Office

of United States Courts for the time

period 1980 through 1995; (b) the

number of court orders for callidentifying information from pen

register and trap and trace devices,

which was obtained from reports

published by the Department of Justice

documenting pen register and trap and

trace usage by DOJ agencies for the time

period 1987 through 1995; and (c) the

historical baseline number of callcontent interceptions and interceptions

of call-identifying information, which

was obtained from the survey of law

enforcement and industry for the time
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1907

period January 1, 1993 through March 1,

1995.

To project the future numerical level

of court orders, statistical and analytical

methods were applied to the historical

interception information. It should be

understood that the projections for the

number of potential future court orders

do not mean that they are the numbers

of orders that law enforcement will in

fact perform in these years or intends to

perform. Rather, they are part of a

statistical method used to derive growth

factors that would be useful ultimately

in calculating future actual and

maximum capacity requirements.

A commonly-used analytical tool for

projections, known as Best-Fit-Line

analysis, was used to track the number

of court orders over time and then to

project the number into the future. As

discussed below, projections were made

for call-content court orders for wireline

and wireless for the year 1998 and the

year 2004. The projections were also

made for the vastly greater number of

pen register and trap and trace court

orders for wireline and wireless for the

year 1998 and the year 2004. Composite

growth figures for wireline and wireless

interceptions were then calculated by

weighting the court order projections by

the relative number of call-content

interceptions and interceptions of callidentifying information during the

period survey. The resulting Awireline and

Awireless growth factors were based on

the 1998 projections. The Mwireline and M

wireless growth factors were based on the

2004 projections. The year 1998 was

selected to comply with the statutory

language of CALEA requiring law

enforcement to estimate actual capacity

requirements by that time. The year

2004 was selected because it provided a

10 year period after the passage of

CALEA, a period that was considered

reasonable for projecting maximum

capacity requirements. It was also

considered to be a rational period for

constituting a stable capacity ceiling

and a design guide.

The value derived for Awireline is 1.259;

the value derived for Awireless is 1.707;

the value derived for Mwireline is 1.303;

and the value derived for Mwireless is

1.621. These growth factors can also be

translated into, and understood in terms

of, annual growth rates for capacity

requirements. For wireline, if computed

annually, growth rates are 5.92 percent

for the period from 1994 through 1998,

and 4.55 percent for the period from

1998 through 2004. For wireless, if

computed annually, growth rates are

14.30 percent and 8.38 percent

respectively, for the same time periods.

Of relevance in determining the

differences in growth rates are the

expectations of overall business growth

for wireline and wireless telephone

services. Market projections for wireline

show a steady rate of 3.5 percent annual

increase, while wireless annual growth

is projected to be 12.0 percent during

each of the next 10 years.

(For more information on how the

growth factors were derived, refer to

Appendix E which is available in the

FBI’s reading room.)

G. Establishing Threshold Capacity

Requirements

In its review of historical interception

activity, law enforcement recognized

that numerous counties and market

service areas had no interception

activity during the time period

surveyed. Under the methodology

described above, these counties and

market service areas would have future

actual and maximum capacity

requirements equal to zero. However,

the establishment of future capacity

requirements of zero would not provide

even a minimal growth flexibility and

would largely undermine the intent of

CALEA, which is to preserve law

enforcement’s ability to conduct some

level of interceptions. Additionally, it is

possible that law enforcement may have

conducted interceptions in some of

these areas before or after the period

surveyed, and it may well have to do so

again. History has shown that criminal

activity or exigent circumstances can

occur anywhere. Therefore, law

enforcement must be capable of

conducting a number of interceptions in

all areas. Consequently, threshold future

capacity requirements were developed

for counties and market service areas

that otherwise would have had a

capacity requirement of zero under the

above methodology.

For wireline telephone service offered

in counties, law enforcement examined

the distribution of historical

interception activity and found that

many counties had no interceptions,

and many others had only one

interception. To avoid having counties

with no future capacity requirement,

law enforcement decided to treat

counties with zero historical

interceptions as if they had one

interception. Hence, when the growth

factors were applied, it produced a

future actual capacity requirement of

two simultaneous interceptions and a

future maximum capacity requirement

of three simultaneous interceptions.

For the wireless market service areas,

law enforcement took a similar

approach. Here, too, it found that many

market service areas had no

interceptions during the time period

surveyed. Law enforcement chose to

treat these market service areas as if

they had one interception. Hence, when

the growth factors for wireless carriers

were applied to these market service

areas, the result was a future actual

capacity requirement of two

simultaneous interceptions and a future

maximum capacity requirement of four

simultaneous interceptions.

III. Statement of Capacity Requirements

A. Capacity Requirements for Wireline

Carriers

Law enforcement is providing notice

for the estimated number of

communication interceptions, pen

register and trap and trace device-based

interceptions that may be conducted

simultaneously in a given geographic

area and has selected counties as the

appropriate geographic basis for

expressing capacity requirements for

telecommunications carriers offering

local exchange service (ie., wireline

carriers). Appendix A lists all actual and

maximum estimates by county.

(Appendix A is available in the FBI’s

reading room for review.) These

estimates represent the number of

simultaneous call-content interceptions

and interceptions of call-identifying

information for each county in the

United States and its territories.

Wireline carriers may ascertain the

actual and maximum estimates that will

affect them by looking up in Appendix

A the county (or counties) for which

they offer local exchange service.

Capacity requirements based on final

estimates will remain in effect for all

telecommunications carriers providing

wireline service to these areas until

such time as the Attorney General

publishes a notice of any necessary

increase in maximum capacity pursuant

to section 104(c) of CALEA.

County capacity requirements

represent the estimated number of all

types of interceptions that may be

conducted simultaneously anywhere

within the county. When effective, the

county capacity requirements apply to

all existing and any future wireline

carriers offering local exchange service

in each county, regardless of the type of

equipment used or the customer base.

Law enforcement recognizes that some

carriers may seek further clarification on

applying the county capacity

requirements based on the

configurations of their networks and

their recommended solutions. Section

103(b) of CALEA forbids law

enforcement from requiring any specific

design of equipment, facilities, services,

features or systems. Because individual

carriers configure their networks

differently, and may pursue different
1908 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

solutions, the Telecommunications

Industry Liaison Unit of the FBI will be

available to discuss the application of

these capacity requirements to a specific

telecommunications carrier’s network

upon request.

B. Capacity Requirements for Wireless

Carriers

Law enforcement is providing notice

for the estimated number of

communication interceptions, pen

register and trap and trace device-based

interceptions that may be conducted

simultaneously in a given geographic

area and has selected market service

areas— MSAs, RSAs, MTAs, and

BTAs—as the appropriate geographic

basis for expressing actual and

maximum capacity requirements for

telecommunications carriers offering

wireless services, specifically those

providing cellular and PCS service (i.e.,

wireless carriers). Appendix B lists all

actual and maximum estimates for

MSAs and RSAs; Appendix C lists all

actual and maximum estimates for

MTAs; and Appendix D lists all the

actual and maximum estimates BTAs.

(Appendices B, C, D are available in the

FBI’s reading room for review.) These

estimates represent the number of

simultaneous call-content interceptions

and interceptions of call-identifying

information for each market service

area. Capacity requirements based on

final estimates will remain in effect for

all wireless carriers providing service to

these areas until such time as the

Attorney General publishes a notice of

any necessary increases in maximum

capacity pursuant to section 104(c) of

CALEA.

In all cases, the statement of

interception capacity for a wireless

market service area reflects law

enforcement’s estimated number of

interceptions that may be conducted

simultaneously anywhere in the service

area. Law enforcement must be capable

of conducting interceptions at any time,

regardless of the location of a subject’s

mobile telephone device within the

service area. When effective, the market

service area capacity requirements

apply to all existing and any future

telecommunications carrier offering

wireless service in each market. Law

enforcement recognizes that some

carriers may seek further clarification

about how to apply the market service

area requirements based on the

configurations of their networks.

Section 103(b) of CALEA forbids law

enforcement from requiring any specific

design of equipment, facilities, services,

features or systems. Because individual

carriers configure their networks

differently, and may pursue different

solutions, the Telecommunications

Industry Liaison Unit of the FBI will be

available to discuss the application of

these capacity requirements to a specific

telecommunications carrier’s network

upon request.

IV. Related Issues

A. Carrier Statement

Section 104(d) of CALEA requires that

within 180 days after the publication of

a Final Notice pursuant to subsections

104(a) or 104(c), a telecommunications

carrier shall submit a statement

identifying any of its systems or services

that do not have the capacity to

accommodate simultaneously the

number of call-content interceptions

and interceptions of call-identifying

information set forth in the notice. The

information in the Carrier Statement

will be used, in conjunction with law

enforcement priorities and other factors,

to determine the telecommunications

carrier that may be eligible for cost

reimbursement according to section 104.

A Telecommunications Carrier

Statement Template has been developed

with the assistance of the

telecommunications industry to

facilitate submission of the Carrier

Statement. The template is not

mandatory, but law enforcement

encourages industry to use the template

when identifying any of its systems or

services that do not have the capacity to

accommodate simultaneously the

number of call-content interceptions

and interceptions of call-identifying

information set forth in the Final Notice.

A diskette containing the template will

be provided by TILU on request by

telecommunications carriers.

The information to be solicited will

include the following: Common

Language Location Identifier (CLLI)

code or equivalent identifier, switch

model or other system or service type,

and the city and state where the system

or service is located. Unique

information required for wireline

systems and services will include the

host CLLI code if the system or service

is a remote, and the county or counties

served by the system or service. Unique

information required for wireless

systems and services will include the

MSA or RSA market service area

number(s), or the MTA or BTA market

trading area number(s) served by the

system or service.

The confidentiality of the data

received from the telecommunications

carriers will be protected by the

appropriate statute, regulation, or

nondisclosure agreements.

After reviewing the Carrier

Statements, the Attorney General may,

subject to the availability of

appropriations, agree to reimburse a

carrier for costs directly associated with

modifications to attain capacity

requirements in accordance with the

final rules on cost recovery. Decisions to

enter into cost reimbursement

agreements will be based on law

enforcement prioritization factors.

On April 10, 1996, the Carrier

Statement Notice was published in the

Federal Register for comment under the

Paperwork Reduction Act (PRA). A sixty

day comment period ensued ending on

June 10, 1996. The Carrier Statement

Notice is subject to the approval of the

Office of Management and Budget

(OMB) under the auspices of the PRA.

A Second Carrier Statement Notice for

comment is currently being prepared for

publication in the Federal Register.

This comment period will consist of

thirty days. At the conclusion of the

comment period, OMB will issue a

clearance number which will be

published in the Final Notice of

Capacity.

B. Cost Recovery Rules

CALEA authorizes the appropriation

of $500 million for FY 1995 through FY

1998 for reimbursing

telecommunications carriers for certain

reasonable costs directly associated with

achieving CALEA compliance. Section

109(e) directs the Attorney General to

establish regulations, after notice and

comment, for determining such

reasonable costs and establishing the

procedures whereby

telecommunications carriers may seek

reimbursement. In accordance with the

section 109(e) mandate, the proposed

rule was published in the Federal

Register, 61 FR 21396, on May 10, 1996.

As authorized by section 109, and on

execution of a cooperative agreement, it

was proposed that a

telecommunications carrier be

reimbursed for the following: (1) All

reasonable plant costs directly

associated with the modifications

performed by the carrier in connection

with equipment, facilities, and services

installed or deployed on or before

January 1, 1995, in order to comply with

section 103; (2) additional reasonable

plant costs directly associated with

making the requirements in section 103

reasonably achievable with respect to

equipment, facilities, or services

installed or deployed after January 1,

1995; and (3) reasonable plant costs

directly associated with modifications

of any telecommunications carriers’

systems or services, as identified in the

Carrier Statement, that do not have the

capacity to accommodate

simultaneously the number of call-
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1909

content interceptions and interceptions

of call-identifying information set forth

in the Final Notice(s).

V. The Initial Notice of Capacity

A. Statement of Capacity Requirements

in the Initial Notice

The capacity requirements presented

in the Initial Notice were expressed as

percentages of engineered capacity and

were reported by category of historical

interception activity levels, with each

geographic area being assigned to one of

three categories: I, II, and III.

Category I included the few densely

populated areas that historically have

had high levels of interception activity.

Category II included other densely

populated areas and some suburban

areas where interception activity had

been moderate. Category III covered all

other geographic areas. All

telecommunications carriers would

have been required to meet the

minimum requirements established for

Category III. In addition, they were to be

notified of those geographic areas

within the areas they serve that fall in

Categories I or II.

The percentages of engineered

capacity applied to the equipment,

facilities, and services that provide a

customer or subscriber with the ability

to originate, terminate, or direct

communications. The purpose of using

percentages was to account for the

dynamic nature and diversity of the

telecommunications industry.

This approach yielded the following

projections of actual and maximum

capacity requirements: for Category I,

0.5 percent for actual, 1 percent for

maximum; for Category II, 0.25 percent

for actual, 0.5 percent for maximum; for

Category III, 0.05 percent for actual, 0.25

percent for maximum.

B. Discussion of Comments on the

Initial Notice of Capacity

On October 16, 1995, law

enforcement’s proposed future actual

and maximum capacity requirements

were presented in an Initial Notice

published in the Federal Register as

mandated by section 104 of CALEA.

Comments on the Initial Notice were

accepted through January 16, 1996.

Fifty-one parties consisting of

individuals, companies, and industry

associations submitted comments. The

following issues were identified from

the comments received in response to

the Initial Notice of Capacity.

1. The Use of Percentages in Lieu of

Fixed Numbers

In the Initial Notice, capacity

requirements were expressed as

percentages of engineered capacity.

Twenty-one comments were received on

the use of percentages in lieu of fixed

numbers. Eighteen of the comments

indicated that law enforcement should

use specific numbers instead of

percentages for expressing its actual and

maximum capacity needs and the

percentages should be translated into

specific numbers for each area, or for

each switch before a Final Notice is

issued. Two of the comments noted that

supplying actual capacity figures would

not require disclosure of sensitive

information to the public. One comment

stated that percentages would

unnecessarily complicate the

implementation and enforcement of

CALEA. One comment stated that

percentages do not meet the intent of

CALEA.

After consideration of the

aforementioned comments, law

enforcement has concluded that

capacity requirements for wireline and

wirless carriers will be expressed as

fixed numbers rather than as

percentages.

2. Engineered Capacity

Twenty comments were received on

law enforcement’s expression of actual

and maximum capacity requirements as

a percentage of the ‘‘engineered

capacity’’ of the equipment, facilities, or

services that provide a customer or

subscriber with the ability to originate,

terminate, or direct communications.

Ten of the comments stated that the

definition of engineered capacity was

too vague and needed to be clarified. Six

of the comments stated that engineered

capacity applied to land line facilities

only and needed to be clarified for

wireless carriers. Two of the comments

supported the use of ‘‘installed lines’’ as

the measure of capacity. One comment

preferred the use of voice channels as a

measurement of engineered capacity for

wireless systems. One comment stated

that the definition of engineered

capacity must be tailored to each

industry segment.

In response to the aforementioned

comments and from comments on the

issue of percentages, law enforcement

chose to use fixed numbers as the

expression of its capacity needs and

thus, the use of terms such as

‘‘engineered capacity’’ no longer have

any relevance.

3. Geographic Categories

In the Initial Notice, capacity

requirements were stated by category of

historical interception levels with each

geographic area being assigned to one of

three categories: I, II, or III. Nineteen

comments were received on

enforcement’s use of geographic

categorization to state its capacity

requirements. Nine of the comments

stated that the notice did not indicate

which geographic areas fell into a

particular category and that further

clarification was needed on the basis for

determining categories. One of the

comments noted that geographic

designations were irrelevant in a

wireless environment. Four of the

comments remarked that counties did

not necessarily correspond to a

particular switch service area. One

comment stated that geographic areas

should be clearly defined and

reasonably small. One comment

requested clarification on determining

capacity when geographic areas

overlapped categories. Three comments

stated that rural and remote areas

should be classified as having Category

III (lowest level) requirements.

Law enforcement considered the

comments and has concluded that it

will no longer use categories for stating

capacity requirements. Instead, specific

geographic locations to include counties

for wireline carriers and market service

areas for wireless carriers will be used

for stating capacity requirements.

4. The Issuance of Separate Capacity

Requirements to the Wireless Industry

Four comments were received on the

application of the capacity requirements

to the wireless industry. Two of the

comments recommended that the

wireline and wireless industry segments

be treated separately for the purpose of

issuing capacity requirements. For

example, it was suggested that the

geographic divisions proposed in the

Initial Notice were based on a wireline

central office architecture, which was

inappropriate given the network

structures for wireless carriers.

Furthermore, two of the comments

requested clarification as to how

wireless carriers were expected to

calculate capacity for their systems.

After consideration of the comments,

law enforcement has concluded that

separate capacity requirements will be

established for wireless carriers.

5. Capacity Requirements in Areas With

No Interception History

Three comments were received

requesting that the notice address areas

that lacked interception history. One

comment stated that if there was no

prior interception history, the capacity

number should be zero while another

comment suggested that a fourth

category should be created for areas

with sparse populations. One comment

requested that law enforcement clarify

whether areas with no interception
1910 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices

history should be required to provide

capability without specific capacity.

In its review of historical interception

activity, law enforcement recognized

that numerous geographic areas had not

conducted interceptions during the time

period surveyed, January 1, 1993 to

March 1, 1995. However, law

enforcement also recognized that

interceptions may have occurred in

these geographic areas before or after the

time period surveyed and may well

occur again in the future. Because

history has shown that criminal activity

and exigent circumstances can occur

anywhere at any time, it is essential that

the ability to conduct some level of

interception exists in all geographic

areas. Therefore, minimum capacity

requirements were established for those

areas that did not exhibit interception

activity during the period surveyed.

6. Application of Capacity Requirements

to Other Technologies

Nine comments were received on the

application of the capacity requirements

to other services, such as mobile

satellite, Cellular Digital Packet Data

(CDPD), Electronic Messaging, and

Special Mobile Radio (SMR) systems.

Four of the comments noted that the

Initial Notice of Capacity lacked any

discussion of data services and

advanced services, such as CDPD, and

that further clarification was needed on

how to calculate capacity requirements

for such services. One comment stated

that the Initial Notice was too general to

measure the potential impact on mobile

satellite services. Four of the comments

requested clarification as to how the

capacity requirements would apply to

SMR carriers in the manner specified.

In response to the aforementioned

comments, law enforcement is issuing a

Notice of Capacity applicable to carriers

that offer services of the most immediate

concern; those carriers offering local

exchange services and certain

commercial mobile radio services,

specifically cellular and PCS services.

Before issuing Notices applicable to

carriers other than these, law

enforcement will consult with such

carriers in order to assess whether the

expression of capacity requirements

herein has any applicability to the way

their services are offered.

7. Interface Recommendations

Seven comments were received on

law enforcement’s interface

recommendations. Two of the

comments requested that interface

recommendations be defined. Two

comments stated that

telecommunications carriers needed

another opportunity to comment once

the interface recommendations were

made available because the interface

recommendations document was

considered to be a prerequisite to

compliance. One comment noted that

capacity requirements should include

delivery channels. One comment stated

that the Initial Notice did not define the

capability to which the capacity

requirements applied.

Law enforcement is mandated by

section 104 of CALEA to issue notices

of actual and maximum capacity

requirements. The Notice pertains solely

to the fulfillment of this CALEA

statutory mandate. Although law

enforcement recognizes the importance

of the comments regarding the interface

and the capability requirements, such

issues are not within the purview of the

Capacity Notice.

8. Definition of Expeditious

One comment was received on the

definition of expeditious as used in

section 104 of CALEA regarding the

expeditious expansion to maximum

capacity. The comment requested that

the term ‘‘expeditiously increase’’ be

explained. The comment also requested

clarification to determine the level of

effort expected from

telecommunications carriers and what

times of day would be required to

effectuate interceptions.

In response to the comment to define

‘‘expeditious expansion to maximum

capacity,’’ law enforcement considers

five business days from receipt of a

court order by a telecommunications

carrier from a duly authorized law

enforcement official, to be a reasonable

amount of time to allow for incremental

expansion up to the maximum capacity.

The level of effort (and the time of day)

required from telecommunications

carriers to effectuate interceptions will

be dependent on CALEA solutions and

times specified in electronic

surveillance court orders.

9. Definition of Simultaneous

One comment was received on the

definition of simultaneous interception.

The comment stated that the Initial

Notice did not adequately define the

term ‘‘simultaneous surveillance’’ so

that switch capacity could be

calculated.

As described in the methodology

section of the instant notice, law

enforcement considers interceptions

occurring on the same day to be

simultaneous.

10. How Surveillances Were Calculated

Two comments were received

requesting clarification on how

surveillances were calculated. One

comment stated that law enforcement

should clarify if multiple wiretap orders

on the same target from different law

enforcement agencies each accounted

for one unit of capacity. One comment

asked for clarification as to whether

interception of a conference call with

many multiple parties could be counted

as multiple interceptions.

In calculating surveillance numbers,

law enforcement considered every line

specified in an electronic surveillancerelated court as one unit of capacity.

This unit of capacity does not include

the services and features (such as a

conference call with multiple parties) an

investigative subject may activate.

11. Separate Requirements for

Communications (Call-Content), Pen

Registers, and Trap and Traces and

Inclusion of National Security

Interceptions

Four comments were received on the

issue of releasing separate requirements

for communications, pen register, and

trap and trace interceptions. Two

comments stated that clarification was

needed to ensure that all lawful

interception requirements were covered

and that the requirements were the

aggregate of communications, pen

register, and trap and trace

interceptions. One comment stated that

the notice should include all

surveillance types, both criminal and

national security. One comment

supported the notion that capacity

requirements should be separated by

communications, pen register, and trap

and trace interceptions.

Law enforcement chose not to issue

capacity requirements by surveillance

type due to the unpredictable nature of

the types of surveillances that may be

needed for a particular investigation.

Additionally, law enforcement will not

issue capacity requirements for

interceptions associated with national

security surveillances in an unclassified

document.

12. Relationship Between Notices of

Capacity and the Carrier Statement

The comment received on the Carrier

Statement requested clarification to

assess the relationship between the

Notice and the Carrier Statement.

In response to the aforementioned

comment, Carrier Statement issues have

been reviewed in section IV.A of this

Second Notice.

13. Historical Baseline of Interception

Activity

Eleven comments were received on

the historical baseline of interception

activity that law enforcement used to

calculate its capacity requirements. Six
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Notices 1911

of the comments requested that the

underlying data be made available. One

comment noted that the capacity

requirements must be consistent with

historical information provided to law

enforcement. Two comments requested

that law enforcement compare law

enforcement data to carrier data and that

the two data sources be reconciled. One

of the comments urged that the capacity

requirements be established for actual

numbers of simultaneous interceptions

for the central office and that those

numbers be based on data and

information supplied by the carriers.

Another comment stated that the

capacity requirements should be based

on historical activity.

As stated in the methodology section

of this notice, law enforcement has

based the capacity requirements on the

historical baseline of interception

activity for specific geographic areas,

and included reasonable growth factors

to establish capacity levels for the

future. Historical baselines are provided

in the appendices of the Second Notice.

14. Methodology

Eight comments were received

questioning the methodology used for

determining capacity requirements.

Specifically, the comments asked law

enforcement to explain its methodology

and justify how actual and maximum

capacity requirements were determined.

In response to these comments, a

methodology section included as part of

the Second Notice describes that means

by which capacity requirements were

determined.

15. Funding and Cost Impact

Fifteen comments were received on

the issues of funding and cost impact.

Three of the comments requested

clarification on the cost impact of

complying with CALEA if Congress did

not appropriate funding. Two comments

requested that law enforcement provide

an equitable distribution plan for fund

disbursement, while another suggested

that law enforcement provide a

reasonable assessment of the level of

funding that was available for upgrades.

Ten of the comments addressed the

costs associated with compliance.

Issues pertaining to cost recovery and

funding are not the subject or intent of

this Notice. Detailed information on

funding and cost recovery issues is

provided in the proposed cost recovery

rules that were published in the Federal

Register, 61 FR 21396, on May 10, 1996.

A summary of these rules is included in

section IV.B of the Second Notice.

16. Impact on Small Carriers

Three comments were received on the

effect that CALEA may have on small

telephone companies. In particular, the

comments indicated that high

implementation costs might make

compliance difficult to achieve. In

addition, the comments stated that

unnecessarily high capacity

requirements might stifle the

advancement of new and emerging

telecommunications technologies in

rural markets.

Law enforcement recognizes that

many small carriers provide service to

geographic areas that historically have

had minimal or no electronic

surveillance activity. The capacity

requirements stated in this notice are

based on the historical interception

activity for a given area. In order for law

enforcement to effectively respond to

future incidents of unusual and

unexpected criminality, minimum

capacity requirements have been

established for areas with no history of

interceptions.

In response to the comment regarding

the effect of capacity requirements on

new and emerging technologies, law

enforcement also recognizes that

CALEA prohibits law enforcement from

specifying the design of equipment,

facilities, features, or systems, or

adoption of any equipment, facility,

service or feature by a

telecommunications carrier.

17. Manufacturers’ Concern

Three comments were received

expressing manufacturers’ concerns

with the capacity requirements. One of

the comments noted that the Initial

Notice might require capacity expansion

beyond current manufacturers’

capabilities. One comment stated that

SMR manufacturers might not have the

products required for SMR carriers to

comply with the capacity requirements.

One comment stated that equipment

should be designed only from the

perspective of the worst case scenario.

Law enforcement has provided

capacity estimates in this Second Notice

that can be used by manufacturers in

designing and developing CALEAcompliant solutions for wireline and

wireless (cellular and PCS)

technologies. Other technologies, such

as SMR, will be addressed in

subsequent Notices of Capacity.

18. Definitions of Installed or Deployed

and Significant Upgrade

One comment requested clarification

on the terms ‘‘installed’’ or ‘‘deployed’’,

inquiring as to whether equipment

ordered before January 1, 1995, but not

delivered until after January 1, 1995,

would be considered installed or

deployed. Another comment stated the

term significant upgrade must be clearly

defined.

The terms installed or deployed and

significant upgrade pertain to the

assistance capability requirements and,

therefore, are not within the purview of

the Notices on Capacity. (It should be

noted that the definition of installed or

deployed was included in the proposed

cost recovery rules published in the

Federal Register, 61 FR 21396, on May

10, 1996.)

Louis J. Freeh,

Director, FBI.

[FR Doc. 97–318 Filed 1–13–97; 8:45 am]

BILLING CODE 4410–02–M

DEPARTMENT OF LABOR

Employment and Training

Administration

[Unemployment Insurance Program Letter

(UIPL) No. 9–97]

Unemployment Compensation for

Federal Employees (UCFE)—Coverage

Ruling for Human Subjects for

Research Studies Conducted by U.S.

Department of Agriculture, Agricultural

Research Service

Pursuant to Employment and Training

Order No. 2–92, the Director,

Unemployment Insurance Service, has

determined that human subjects who

participate in nutritional research

studies conducted by the U.S.

Department of Agriculture, Agricultural

Research Service, do not perform

‘‘Federal Service’’ within the meaning of

5 U.S.C. 8501(1) for UCFE program

purposes. The UCFE Coverage Ruling

No. 97–1 is published below.

Dated: January 6, 1997.

Timothy M. Barnicle,

Assistant Secretary of Labor.

Directive: Unemployment Insurance Program

Letter No. 09–97.

To: All State Employment Security Agencies.

From: Mary Ann Wyrsch, Director,

Unemployment Insurance Service.

Subject: Unemployment Compensation for

Federal Employees (UCFE) Program

Coverage Ruling No. 97–1, Human

Subjects for Research Studies Conducted

by the U.S. Department of Agriculture,

Agricultural Research Service (ARS).

1. Purpose. To provide State Employment

Security Agencies (SESAs) with a copy of the

above UCFE program coverage ruling.

2. Background. For a complete discussion

of the background of the UCFE Program

Coverage Ruling No. 97–1, please refer to the

Discussion/Analysis section of the

attachment to this directive.