[Federal Register Volume 68, Number 234 (Friday, December 5, 2003)]
[Notices]
[Pages 68112-68121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30258]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

[Docket No. FBI 109; RIN 1100-AA14]


Implementation of Section 104 of the Communications Assistance 
for Law Enforcement Act

AGENCY: Federal Bureau of Investigation, (FBI), Justice.

ACTION: Final notice of capacity; supplement for the purpose of 
responding to remand.

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SUMMARY: By this notice, the FBI is responding to a court decision to 
remand for further explanation two issues from the final notice of 
capacity. The final notice of capacity was published on March 12, 1998, 
at 63 FR 12218, pursuant to the requirements of the Communications 
Assistance for Law Enforcement Act (``CALEA''), 47 U.S.C. 1001, et seq. 
Because the court did not vacate the final notice of capacity, we are 
providing further explanation as to the two remanded issues and are not 
republishing the final notice of capacity. Telecommunications carriers 
should note that the provisions of 47 U.S.C. 1003(d) do not apply to 
today's notice and should not file a ``carrier statement'' in response 
thereto. Comments on this notice may be submitted in accordance with 
the instructions below.

DATES: Written comments must be received at CALEA Implementation Unit, 
14800 Conference Center Drive, Chantilly, VA 20153 on or before 
February 3, 2004.

FOR FURTHER INFORMATION CONTACT: Contact the CALEA Implementation Unit, 
Federal Bureau of Investigation (FBI) at (703) 814-4700, or at CALEA 
Implementation Unit, 14800 Conference Center Drive, Chantilly, VA 
20153.

I. Background

    Congress enacted CALEA in 1994 to require telecommunications 
carriers to ensure that their networks have the capability to enable 
local police, Federal officers and all other law enforcement agencies 
to conduct lawfully authorized electronic surveillance. Electronic 
surveillance is an indispensable tool used in investigating serious 
crimes, including terrorism, drug trafficking, and kidnaping. Congress 
has long recognized the importance of this investigative technique, and 
has authorized and governed its use through several laws, including 
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 
U.S.C. 2510 et seq. (``Title III''), the Electronic Communications 
Privacy Act of 1986, 18 U.S.C. 2701 et seq. (``ECPA''), and the Pen 
Registers and Trap and Trace Devices provisions, 18 U.S.C. 3121 et 
seq., as those laws were recently modified by the USA PATRIOT Act, 
Public Law 107-56, 115 Stat. 272, recently.
    Under these laws, the government can obtain authority to intercept 
various forms of transmitted communications, including but not limited 
to, telephone conversations, pager messages, electronic mail, and 
computer data transmissions. Communications interceptions, commonly 
referred to as ``wiretaps,'' are strictly regulated by Title III. With 
few and limited exceptions, wiretaps are prohibited without prior court 
authorization. The threshold level of proof to obtain such 
authorization includes a determination that probable cause exists to 
believe that the communications to be intercepted will constitute 
evidence of a crime.
    The government can also obtain authority from a court to use a 
``pen register'' or ``trap and trace device.'' This requires a lower 
amount of proof than that required under Title III. Pen registers and 
traps and traces may not be used to intercept communications; rather, 
they are used to acquire ``call identifying information.'' This 
information includes the dialing and signaling associated with a 
communication. See 47 U.S.C. 1001(2) (definition of ``call identifying 
information''). Telephone numbers and the routing information in a 
packet header are both examples of call

[[Page 68113]]

identifying information. Pen registers are devices or processes for 
acquiring outgoing dialing, routing, addressing and signaling 
information, and traps and traces are used to record such information 
as it is incoming. 18 U.S.C. 3127(3), (4).
    The electronic surveillance laws cited above delineate the 
government's lawful authority to intercept communications and acquire 
call-identifying information. CALEA, by contrast, is intended to 
preserve the government's technical ability to engage in electronic 
surveillance as allowed by law. It does so by requiring 
``telecommunications carriers'' to design or modify their systems to 
ensure the government's ability to intercept communications and acquire 
call-identifying information, pursuant to lawful authorization. See 
generally 47 U.S.C. 1002.
    In addition, CALEA contains ``capacity requirements.'' See 
generally id Sec.  1003. The capacity provisions generally require 
carriers to be capable of supporting a certain number of communications 
interceptions, pen registers, and traps and traces at the same time. 
These provisions also require the Attorney General to issue a notice of 
the maximum and actual capacity requirements setting forth the 
``maximum'' and ``actual'' number of communications interceptions, pen 
registers, and traps and traces that all government agencies may, in 
the future, conduct and use at the same time. The FBI Director is the 
authorized delegate of the Attorney General with respect to the 
implementation of CALEA, and therefore has issued such notices of 
capacity on the Attorney General's behalf.\1\
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    \1\ See 28 CFR 0.85(o).
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A. Notices of Capacity

    In 1995, the FBI published an initial notice of capacity which 
expressed capacity requirements in terms of a ``percentage of 
engineered capacity.'' 60 FR 53643 (Oct. 16, 1995). After receiving 
comments from the public we revised that methodology and published a 
second notice of capacity. 62 FR 1902 (Jan. 14, 1997). After an 
additional round of comments, we published the final notice of capacity 
(referred to herein as the ``final notice'') on March 12, 1998. 63 FR 
at 12218-12310. At all times, we sought and incorporated the comments 
of the telecommunications industry, which assisted us in understanding 
the challenges facing the industry and others in applying the capacity 
requirements. The FBI acted on behalf of all Federal, State and local 
law enforcement agencies nationwide in establishing these capacity 
requirements.
    The capacity requirements contained in the final notice were based 
on data obtained through a survey of Federal and State court clerks, 
law enforcement agencies, and telecommunications carriers. These 
entities were requested to provide records of any past surveillance 
activity conducted between January 1, 1993, and March 1, 1995. After 
gathering and organizing this data, we formed ``baseline'' numbers of 
surveillances for each region in the country.\2\ The final notice 
identified capacity requirements for telecommunications carriers 
offering local exchange services (referred to as ``wireline'') and 
wireless carriers providing certain commercial mobile radio services, 
specifically cellular service and personal communications service 
(PCS).\3\
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    \2\ We use the term ``surveillances'' herein, to refer to 
multiple instances of any type of surveillance, whether 
communications interceptions, pen registers, and/or traps and 
traces.
    \3\ See 63 FR 12220. In the final notice of capacity, PCS was 
considered a service operating in the licensed portion of the 2 GHz 
band of the electromagnetic spectrum, from 1850 MHz to 1990 MHz. Id.
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    Counties \4\ were used as the geographic region in identifying 
capacity requirements for wireline carriers. With respect to wireless 
services, the Federal Communications Commission (FCC) utilizes 306 
Metropolitan Statistical Areas (MSA) and 428 Rural Statistical Areas 
(RSA) for cellular licensing purposes; and 51 Major Trading Areas (MTA) 
and 493 Basic Trading Areas (BTA) for PCS licensing. Each of these 
geographic regions was used in identifying capacity requirements for 
cellular and PCS services respectively. For purposes of this 
publicaiton, we will collectively refer to all of these types of 
wireless service areas as ``market service areas.''
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    \4\ The term ``counties'' includes boroughs and parishes as well 
as the District of Columbia and independent cities. U.S. territories 
(i.e., American Samoa, Guam, Mariana Islands, Puerto Rico, and the 
U.S. Virgin Islands) were considered as single entities.
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    The baseline numbers were derived from analysis of the number of 
surveillances that were ongoing on particular days during the survey 
period.\5\ The final notice describes in detail how the baselines were 
calculated. See 63 FR 12224-26. As the final notice describes, we chose 
to count multiple surveillances ongoing on the same day as occurring 
``simultaneously'' for the purpose of determining capacity 
requirements. For example, if the survey data had indicated that on 
January 2, 1993, in a particular market service area, Title III 
surveillance had been established on two cellular telephones, and a pen 
register had been installed on a third, then these would have been 
counted as three simultaneous surveillances. Having formed baselines, 
we thereafter generated the capacity requirements by multiplying the 
baseline by a growth factor. The FBI chose in the final notice to 
publish capacity requirements in the form of a single ``actual'' and 
``maximum'' number for each region, rather than as separate numbers for 
the different types of surveillance (communications interceptions and 
pen registers/traps and traces).
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    \5\ A single surveillance is an interception, pen register or 
trap and trace established with respect to a single subscriber line. 
Thus, a single court order might authorize multiple 
``surveillances'' as that term is used herein. See 63 FR 12224.
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B. Court Decision

    On January 18, 2002, the District of Columbia Circuit ruled on a 
number of challenges to the final notice. See USTA v. FBI, 276 F.3d 620 
(D.C. 2002). While the Court's decision largely upheld the final 
notice, it vacated one issue and remanded two others to the FBI. The 
Court vacated the statement in the final notice (63 FR 12219) that 
``law enforcement considers 5 business days from a telecommunications 
carrier's receipt of a court order to be a reasonable time within which 
to permit an incremental expansion up to the maximum capacity.'' USTA, 
276 F.3d at 627. The Court also required the FBI to provide further 
explanation of: (1) our decision to count any two historical 
surveillances occurring on the same day as simultaneous and, (2) our 
decision to set forth only one ``actual'' and one ``maximum'' capacity 
requirement number per region, rather than separate requirements for 
each type of surveillance.
    The Court's concern with both of these issues centered on the 
explanations contained in the final notice. The Court did not vacate 
these portions of the final notice, but directed the district court to 
remand them to the FBI for a more adequate explanation.

II. Response to the Remand

    This publication responds to the Court's remand by addressing both 
issues as follows. First, we provide additional explanation, not 
previously before the Court, for our interpretation of the term 
``simultaneously.'' Second, we are supplying carriers with supplemental 
guidance with regard to the previously-published numerical capacity 
requirements by providing a method of breaking those numbers down 
between communications

[[Page 68114]]

interceptions and acquisitions of call-identifying information.\6\ This 
additional guidance should further assist carriers in their efforts to 
comply with CALEA's capacity requirements, while at the same time it 
will address the concerns raised by the remand. Following the end of 
the comment period, the FBI will review any such comments it receives 
and publish a finalized notice in the Federal Register.
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    \6\ For the purposes of this publication, we will use the term 
``pen register/trap and trace'' to refer to the acquisition of call-
identifying information, whether incoming, outgoing or both.
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A. Meaning of ``Simultaneously''

    The first issue we address herein is the interpretation of the term 
``simultaneously.'' The Court of Appeals noted that the final notice 
``treated interceptions as `simultaneous' if they occurred on same day, 
even though they may each only take moments and do not overlap in the 
least.'' USTA, 276 F.3d at 626. We understand the Court's concern to be 
that communications, such as telephone calls for example, could be 
short in duration, and interceptions of two or more of them on the same 
day might ``not overlap'' if they occurred at different times. The 
Court directed us to provide further explanation for our determination 
of capacity requirements based not on a number of overlapping 
communications interceptions, but on a number of surveillances ongoing 
on the same day.\7\
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    \7\ The Court referred only to overlapping communications 
interceptions, and not to pen registers/traps and traces, in its 
discussion of ``simultaneously.'' As set forth below, however, the 
statute also refers to the simultaneous use of pen register or trap 
and trace devices, as well as the simultaneous use of such a device 
along with the conduct of one or more communications interceptions. 
For purposes of this publication, we will first address the Court's 
cited concerns with regard to non-overlapping communications 
interceptions.
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    In response to the Court's direction, the FBI provides the 
following further explanation of its capacity methodology. First, the 
FBI examined the statutory language of CALEA. This examination 
suggested that 47 U.S.C. 1003 permits using same day data. The statute 
only requires that the government provide estimates of interceptions, 
pen registers, and trap and traces that law enforcement ``may conduct 
and use simultaneously.'' 47 U.S.C. 1003(a)(1)(A), (B). The word 
``may'' indicates that capacity requirements should represent a number 
of interceptions that might take place. Second, the FBI examined how 
other courts have interpreted the word simultaneously. These cases 
suggested that the word simultaneous can be interpreted more broadly 
than coterminous, giving the FBI additional latitude to use the data 
available. Third, the FBI offers an explanation of how technology 
impacts capacity requirements. This explanation shows how using the 
number of same day ongoing surveillances provides a technology neutral 
approach allowing carriers to use their expertise to efficiently design 
their systems. For example, some technical intercept solutions require 
dedicated hardware for the duration of a court order regardless of 
whether the target is actually communicating, while an alternative 
technical intercept solution requires carriers' resources only when 
communications occur. Finally, we explain how the capacity requirements 
are based on data and expressed in terms within the FBI's and other law 
enforcement agencies' expertise. The FBI's particular expertise 
includes knowledge of the historical patterns of criminal activity 
within our jurisdiction, and of the investigative resources 
historically needed to detect and prevent such activity. Our expertise 
also includes an understanding of the frequency with which we have had 
to rely on electronic surveillance as a tool, and of the implications 
of limitations on its use in the future.
1. Statutory Language
    As set forth above, CALEA requires the government to estimate the 
number of interceptions, pen registers, and trap and trace devices, 
that law enforcement authorities ``may conduct and use 
simultaneously.'' 47 U.S.C. 1003(a)(1)(A), (B) (emphasis added). These 
terms, including the word ``simultaneously,'' are not defined in CALEA.
    First, we believe that CALEA's language supports the FBI's approach 
to the capacity requirements, even when viewing the term 
``simultaneously'' as referring only to precisely coterminous actions. 
This is because Congress directed us to estimate the number of 
interceptions, pen registers, and traps and traces that law enforcement 
agencies ``may conduct and use simultaneously.'' (emphasis added). The 
term ``may'' indicates that capacity requirements should represent a 
number of interceptions that might take place, which is precisely what 
the FBI approach accomplishes. For example, in our experience, criminal 
suspects may, like anyone else, make and receive phone calls at any 
time of the day or night. Thus when two or more telephones are under 
lawful surveillance on the same day, calls may occur at any time and 
thus ``may'' result in communications interceptions at the same exact 
time. Our establishment of capacity requirements based on a number 
surveillances on the same day is therefore a reasonable basis on which 
to predict the number of precisely coterminous interceptions that law 
enforcement agencies ``may'' conduct.
    Second, in common usage, the word ``simultaneously'' could 
encompass events that are not precisely coterminous but happen on the 
same day or around the same time. This understanding has been applied 
in court opinions as well. See, e.g., Mendes-Silva v. United States, 
980 F.2d 1482, 1486 (D.C. Cir. 1993) (``simultaneous administration'' 
of drug defined by party as administration on ``the same day''), cert. 
denied, 479 U.S. 923 (1986); San Luis Obispo Mothers for Peace v. NRC, 
789 F.2d 26, 40 n.11 (D.C. Cir. 1986) (``simultaneous occurrence'' of 
earthquake and nuclear accident defined as occurrence of the two events 
within ``48 hours''). Courts also refer to actions, such as the filing 
of motions, as ``simultaneous'' if they occur on the same day. See 
generally, Spenkelink v. Wainwright, 442 U.S. 1301, 1303 (1979) (per 
Rehnquist, J., in chambers) (``[t]he District Court simultaneously 
entered a second order''); Dillard v. Industrial Comm'n of Virginia, 
416 U.S. 783, 792 (1974) (insurance company ``[s]imultaneously'' 
applied for a regulatory hearing and discontinued payments to insured); 
City of Orrville v. FERC, 147 F.3d 979, 984 (D.C. Cir. 1998) (on ``same 
day'' that one party requested a rehearing another party 
``simultaneously moved to intervene''). The FBI's treatment of 
interceptions occurring on the same day as simultaneous, is therefore, 
a permissible interpretation of this statutory term.
    We further note that the statute directs us to give notice of a 
number of simultaneous surveillances of all types, not just 
interceptions. In pertinent part, it states that the Attorney General 
should ``provide * * * notice of the * * * number of communications 
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.'' 
47 U.S.C. 1003(a)(1)(A) (emphasis added). This provision plainly 
contemplates, among other things, the ``use'' of a pen register or trap 
and trace device, simultaneously with the ``conduct'' of one or more 
interceptions. Although, as the Court observed, two communications 
interceptions might not overlap if they occur at different times of the 
day, the same cannot be said for either the simultaneous ``use'' of

[[Page 68115]]

two or more pen registers or trap and devices, or the simultaneous use 
of such device(s) with the conduct of an interception. Since a pen 
register or trap and trace device may be said to be in ``use'' for so 
long as it is installed on a line, and not just when it is actually 
obtaining information, then its ``use'' would continue throughout each 
day over the time period that it is installed. The device's use would 
then occur ``simultaneously'' with the conduct of any communication 
interceptions on the same day, irrespective of the time. It would also 
be simultaneous with the use of any other pen register or trap and 
trace devices on the same day. Our approach to the capacity 
requirements is consistent with this reading of the statutory language, 
since we counted the numbers of ongoing surveillances of all types on a 
single day in determining the baselines. For all of the reasons 
discussed above, we opine that it is appropriate to determine and 
express the capacity requirements in terms of a number of surveillances 
ongoing on the same day.
2. Law Enforcement Needs and Capacity Requirements
    The FBI's approach to the capacity requirements is based on the 
premises: (A) that carriers will need to use certain resources to 
assist with each lawful surveillance, and (B) that more resources might 
be needed for each additional surveillance initiated while others are 
ongoing. As the Court is aware, we sought, to determine a number of 
surveillances that might be ongoing on the same day within particular 
geographic regions. Having notice of this number, we believed, carriers 
(as well as law enforcement agencies) would be able to anticipate and 
plan for the amount of resources they might need to use in order to 
facilitate the specified number of surveillances. Ultimately, 
therefore, our approach was intended to ensure the important goals that 
carriers will have the appropriate notice and will make the appropriate 
level of resources available in order to meet law enforcement's 
surveillance needs.
    We now seek to provide the Court with further explanation of our 
approach. First, determining the capacity requirements as a number of 
ongoing surveillances is an approach that is ``neutral'' as to the 
system design chosen by the carrier to meet the requirements. By 
contrast, determining and expressing the requirements in terms of a 
number of overlapping communications interceptions would assume the 
carrier's system only utilizes additional resources when the 
communications interceptions overlap. In fact, some carriers' systems 
require additional dedicated resources for each additional ongoing 
surveillance, notwithstanding whether communications interceptions 
overlap.
    Second, our approach allows the industry the flexibility to use its 
expertise to design different systems and allows law enforcement 
agencies to benefit from such expertise. Under the FBI's approach, a 
carrier is not precluded from designing and implementing different 
systems for meeting the requirements, including systems that do not 
require dedicated resources for each additional surveillance. If the 
number of overlapping communications were relevant to a carrier's 
chosen design, the telecommunications industry may rely on its special, 
if not unique, expertise in determining the extent to which that might 
occur.
(a) The Final Notice Determined Capacity Requirements in a System-
Neutral Manner
    Determining capacity requirements in a system-neutral manner is 
necessary because CALEA did not authorize the FBI to require any 
specific system design. See 47 U.S.C. 1002(b)(1). In addition, we know 
that carriers in fact use designs that differ in their capabilities to 
accommodate multiple surveillances at the same time. To accommodate 
these realities, we sought to give carriers notice of a number of 
surveillances that may be conducted at the same time, because they may 
need to use more resources to support each additional surveillance 
while others are ongoing. This is in fact the case in systems that are 
designed to use specific resources for the entire time that a 
surveillance is ongoing, even when no communication is actually being 
intercepted.
    For example, some telecommunications switches are designed to send 
lawfully intercepted communications and call-identifying information to 
a law enforcement agency over a high-capacity connection referred to as 
a ``T1.'' These systems are designed such that a T1 connection must be 
dedicated to the surveillance for the entire time that the surveillance 
is in effect. The number of T1 connections that can be supported at one 
time by a telecommunications switch is limited. Hence, such a carrier 
would likely need to be able to support multiple T1 connections in 
order to facilitate multiple surveillances on the same switch on the 
same day.
    CALEA's legislative history indicates that Congress may have 
contemplated a similar example when enacting CALEA's capacity 
provisions in the first instance. At the time of CALEA's enactment, 
Congress was made aware by the FBI of a number of cases where lawfully 
authorized surveillance had been impeded due to insufficient ``cellular 
port capacity.'' See H.R. Rep. No. 103-827, 103rd Cong., 2nd Sess., at 
15 (1994). At this time, cellular telephone surveillance was conducted 
by accessing a subject's communications at the telecommunications 
switch through one of a limited number of access ports used for 
maintenance. Hence, each interception required the use of another 
access port, and the number of interceptions that could be active at 
the same time was limited by the number of available ports.
    In both of the above examples, the ability of the carrier's system 
to accommodate multiple surveillances at the same time is limited. 
Importantly, this ability is limited by the number of surveillances 
ongoing at the same time, not by the number of overlapping 
communications actually being intercepted at the same time. If we were 
to adopt an alternative approach by determining capacity requirements 
based on a number of overlapping communications interceptions, then the 
capacity requirements based thereon would not provide carriers with 
systems similar to the examples above with notice of the number of 
surveillances they could be required to accommodate at the same time. 
Such carriers might then underestimate the resources necessary to 
support those surveillances. In order to ensure that all carriers will 
have the information they need in order to meet law enforcement's 
needs, the capacity requirements should therefore be based on a number 
of ongoing surveillances.
    We are aware, however, that some carriers' systems function 
differently. For example, some telecommunications switches are capable 
of sending intercepted communications and call-identifying information 
over an ordinary phone line, by ``dialing-out'' such information each 
time a communication occurs. In these systems, the switch resources are 
released after the intercepted communications are transmitted and 
become available for other uses. The carriers' ability to facilitate 
multiple surveillances in these cases might to some degree be affected 
by the number of overlapping communications interceptions. 
Nevertheless, we cannot base the capacity requirements on an assumption 
that all carriers' systems have this or similar abilities, because, in 
fact, many do not.

[[Page 68116]]

    Nothing in our approach to the capacity requirements would preclude 
a carrier from meeting them by using a ``dialing-out'' capability or 
any other system design. Having notice of the number of surveillances 
that law enforcement agencies may conduct at any given time, carriers 
and their manufacturers and suppliers could engineer methods of 
facilitating that number of surveillances without reliance on 
additional resources being dedicated for each additional surveillance 
maintained. If it were relevant to the system design, members of the 
telecommunications industry, as discussed below, have special expertise 
in determining the frequency with which communications (and the 
interceptions thereof) might overlap.
    Applying our preceding explanation, we believe that determining 
capacity requirements based on a number of same-day surveillances is 
the most appropriate method for ensuring that carriers will be able to 
meet law enforcement's surveillance needs.
(b) The Final Notice Allows for Different System Designs and Allows Law 
Enforcement To Benefit From Industry Expertise
    Another benefit not previously presented to the Court is that the 
capacity requirements stated in the final notice allow carriers to 
design a system that can meet the requirements through different 
methods. Stating capacity requirements in terms of a number of 
simultaneous surveillances thus allows law enforcement agencies to 
benefit from the special expertise of the telecommunications industry. 
With notice of the number of simultaneous surveillances that they 
should be able to facilitate, carriers can use their own expertise to 
decide how to design a system to facilitate that number of 
surveillances.
    CALEA recognizes that carriers, manufacturers and suppliers are 
naturally in a position to assess the capabilities of their own 
systems, and to design and implement technical changes to their systems 
to meet different demands. The structure of CALEA reflects a 
recognition that members of the telecommunications industry possess 
expertise in engineering technical requirements necessary to facilitate 
lawful surveillance. For example, CALEA allows carriers to design 
systems that follow an industry-adopted set of technical standards that 
meet CALEA's requirements. See 47 U.S.C. 1006(c); see also USTA v. FCC, 
227 F.3d 450, 460 (referencing CALEA's ``unique structure'' in 
delegating the establishment of technical standards to both the 
telecommunications industry and the FCC).
    In order for law enforcement agencies to obtain the benefit of 
industry expertise, it is most appropriate that the capacity 
requirements be determined and expressed in terms of a certain number 
of ongoing surveillances. The industry is then left free to design an 
appropriate system to meet these requirements. As discussed below, such 
designs might involve the dedication of certain resources for the 
duration of each surveillance, or might rely on shared resources that 
are invoked only when a communication is actually being intercepted and 
then released when the communication is over, or some combination of 
both. The capacity requirements set forth in the Final Notice, as 
discussed above, are ``system neutral'' in that they do not assume any 
particular system design.
    Carriers, along with their manufacturers and suppliers, possess 
special expertise in assessing their subscribers's potential use of 
their telecommunications systems. Carriers routinely in the ordinary 
course of their business engage in ``traffic engineering'' to determine 
the ``busy hour,'' when the frequency and/or duration of their 
subscribers'' telecommunications activity is highest. In order to 
guarantee a certain level of service to their subscribers, carriers are 
necessarily well informed of the level of burden that subscribers are 
likely to place on the telecommunications system at any given time. 
Without such knowledge they would not be able to provide the level of 
service that their subscribers expect. For example, wireline telephone 
carriers routinely estimate the number of their subscribers who are 
likely to pick up their telephones at the same time in order to place a 
call. The same types of assessments are routinely made by carriers with 
regard to the design and implementation of new ``features'' that the 
carrier offers to subscribers, such as call-waiting or conference 
calling. The carrier's telecommunications system is designed in such a 
way as to be able to satisfy the subscribers' demands as closely as 
possible. Such assessments are particularly within the scope of the 
industry's particular expertise.
    Carriers and other industry members are therefore specially, if not 
uniquely, qualified to assess the burdens that a certain number of 
surveillances could place on their telecommunications systems. In one 
sense, the carrier's design of a system to meet CALEA's requirements is 
analogous to the design of any other ``feature'' that may be associated 
with a subscriber's service. Carriers and other members of the 
telecommunications industry are specially qualified to assess the 
frequency and duration of the communications made by a subscriber under 
surveillance, and the extent to which a given number of surveillances 
might involve communications that overlap, in the event that such an 
assessment is relevant to the particular system design chosen by the 
carrier. Indeed, a carrier's routine assessment of its subscribers' use 
of the telecommunications system will necessarily include an assessment 
of such use by those subscribers who happen to be under lawful 
surveillance. For example, in a wireline carrier's system, if an 
assessment of the frequency and duration of the phone calls made or 
received by subscribers under surveillance is relevant to the carrier's 
design of a system to meet the capacity requirements, then the carrier 
can use its expertise to make that determination. Law enforcement 
agencies, in turn, will benefit from the industry's expertise in this 
regard.
3. The Capacity Requirements Are Based on Data and Expressed in Terms 
Within the FBI's and Other Law Enforcement Agencies's Expertise
    The FBI chose the aforementioned approach towards determining 
capacity requirements because the data and the terms in which we stated 
the capacity requirements were within our expertise, the area of law 
enforcement. The data we acquired through our survey, as discussed 
above, included information regarding the number of surveillances 
ongoing at certain times within a given geographic area. Our particular 
expertise allowed us to analyze and derive conclusions from this data 
regarding the number of surveillances likely to be sought by law 
enforcement agencies in particular geographic regions at the same time. 
These data did not include information from which we could determine 
the number of overlapping communications interceptions. In addition, as 
outlined below, stating the capacity requirements in such terms would 
have had little meaning or usefulness to other law enforcement 
agencies. We offer the following explanation to illustrate why it was 
reasonable for the capacity requirements to be based on, and expressed 
in terms of, a number of ongoing surveillances.
    The FBI's particular expertise includes knowledge of the historical 
patterns of criminal activity within our jurisdiction, and of the 
investigative resources historically needed to detect and prevent such 
activity. Our expertise

[[Page 68117]]

also includes an understanding of the frequency with which we have had 
to rely on electronic surveillance as a tool, and of the implications 
of limitations on its use in the future. Indeed, we are necessarily 
familiar with the frequency with which we have sought to conduct 
communications interceptions, in part through our compliance with the 
requirements of Federal law regarding reports to the Administrative 
Office of the Courts. See 18 U.S.C. 2519. Therefore, we believe it was 
reasonable that our survey focus on determining the frequency with 
which all law enforcement agencies nationwide have relied upon 
electronic surveillance in their investigations.
    As already stated, the data acquired through our survey cannot be 
used to determine the frequency of overlapping communications 
interceptions. Such data did not include any information regarding the 
hours, minutes and times of day that particular communications 
interceptions occurred. Rather, the survey data reflects the days over 
which surveillances were ongoing.
    The FBI now offers this further explanation to justify why our 
reliance on data reflecting numbers of ongoing surveillances was 
reasonable. First and foremost, an analysis thereof was within the 
FBI's expertise in assessing the level of investigative resources 
needed to combat crime. Conversely, a survey and analysis focused on 
the number of overlapping communications interceptions would not be 
within our traditional expertise. Such an exercise would be more akin 
to the ``traffic engineering'' studies traditionally engaged in by the 
telecommunications industry. For example, it would require us to make 
determinations about the extent to which individuals will make or 
receive phone calls at the same time. As discussed above, if that 
assessment were relevant to the system design chosen by a carrier, then 
the carrier is in the most appropriate position to make it.
    Second, the capacity requirements set forth in the final notice, in 
addition to satisfying the requirement for notice to carriers, will 
serve as guidance to law enforcement agencies in understanding 
potential technical limitations on the use of electronic surveillance. 
Agencies can readily comprehend, and if necessary, plan for, being able 
to conduct only a certain limited number of surveillances at a given 
time. On the other hand, stating the capacity requirements in terms of 
a number of overlapping communications interceptions would have little 
or no meaning to law enforcement agencies.
    We further note that initiating a new study to determine the 
frequency of overlapping communications interceptions would consume a 
large amount of time and resources, would be problematic, and, for all 
of the reasons discussed herein, would ultimately not be beneficial to 
our goal of ensuring that law enforcement's needs are met. Such a study 
would require us to gather and analyze numerous evidence files in an 
attempt to determine the exact times at which communications were 
intercepted and whether or not they overlapped. Because most 
surveillances are conducted by agencies other than the FBI, most of 
these files would need to be obtained from third parties, such as other 
law enforcement agencies or the courts. Given the number of 
surveillances determined from our survey, this could involve hundreds 
of files. Moreover, it is also doubtful that such data could even be 
used to derive a ``typical'' frequency of overlap among interceptions 
on which we could reliably base the capacity requirements. First, not 
every communication that might be intercepted through an ongoing 
surveillance actually is intercepted, such that it is recorded and 
entered into evidence files. In particular, some communications made 
over the facilities subject to the surveillance are not recorded 
because they are not pertinent to the investigation. See 18 U.S.C. 
2518(5) (this is often referred to as the ``minimization'' requirement 
under Title III). An incomplete picture of the potential for overlap 
might therefore be presented through a review of evidence files. 
Second, the probability for overlap when conducting surveillances in 
different types of cases could vary greatly. In our experience, some 
surveillances, such as those in bookmaking or drug dealing cases, may 
involve many communications interceptions over a relatively short 
period of time. In other cases, such as kidnaping, only a few 
communications may be actually intercepted.
    Finally, as described above, we believe that estimating the number 
of overlapping intercepted communications would not be ultimately 
beneficial to effectively estimating law enforcement's capacity 
requirements. In particular, as we discuss above, we believe that 
capacity requirements are most appropriately based on a number of 
surveillances being conducted on the same day, not on a number of 
overlapping interceptions.

B. Breakdown of Capacity Requirements by Type of Surveillance

    The second issue we address in this publication is the breakdown of 
capacity requirements by type of surveillance. The statute, as 
discussed above, directs us to provide ``notice of the actual number of 
communications interceptions, pen registers, and trap and trace 
devices.'' 47 U.S.C. 1003(a)(1) (emphasis added). The FBI decided, 
therefore, in the final notice to provide an ``actual'' and a 
``maximum'' number representing a total number of surveillances, for 
each county and market service area. The Court questioned our 
explanation of the basis for this decision, noting that the FBI's 
numbers ``drew no distinction between different types of interceptions 
(e.g., communications content versus mere pen registers).'' USTA, 276 
F.3d at 626. According to the Court, different types of surveillance 
may ``impose different demands'' on the carrier's ability to meet the 
capacity requirements. Id. at 627. The Court further noted, as we 
stated in the final notice, that more delivery channels may be needed 
in order to facilitate a communications interception as opposed to the 
operation of a pen register and/or a trap and trace device. Id. The 
Court therefore remanded this issue to us for a more adequate 
explanation.
    The FBI has considered this issue and continues to find that it is 
appropriate, given the statutory requirements, to state the capacity 
requirements for each geographic region as a single actual and single 
maximum number. Moreover, our approach was consistent with the 
methodology we used to determine the capacity requirements, which, as 
described above, focused on the highest number of surveillances of any 
type that were ongoing on a single day or days during the survey 
period.
    Nevertheless, we find that we can further address the court's 
concerns and at the same time benefit law enforcement agencies and 
telecommunications carriers, by providing additional guidance on the 
application of the capacity requirements. We set forth our analysis of 
the issue and our finding that the method described below achieves this 
goal by limiting the number of simultaneous communications 
interceptions that are required to be accommodated in the counties and 
market service areas with the highest capacity requirements. By so 
limiting the number of communications interceptions, we are now giving 
the carriers providing service in these regions guidance that allows 
them to

[[Page 68118]]

draw a distinction between different types of surveillances in meeting 
the capacity requirements.
1. National Average Ratio Is Not an Appropriate Basis
    As we stated in the final notice, the ratio of interceptions to pen 
registers/traps and traces according to the national average, is not an 
appropriate basis on which to determine capacity requirements. 63 FR 
12235-36. This is because our survey determined that the historical 
experience of each county and market service area varies greatly. In 
some regions, all or nearly all historical surveillances consisted of 
communications interceptions, while in others, all of the surveillances 
were pen registers or traps and traces. Id. The national average ratio 
of communications interceptions to pen registers/traps and traces is 
not therefore representative of any specific geographic region.
2. Conclusions From Historical Survey Information
    Because a national average ratio would not be appropriate to use, 
we decided to examine the breakdown between different types of 
surveillance at the county and market service area level. Using the 
FBI's original survey data, we examined the percentage of 
communications interceptions that were included within the historical 
experience of each county and market service area.\8\ Some general 
conclusions were able to be drawn from this examination, as described 
below.
---------------------------------------------------------------------------

    \8\ A ``historical experience'' figure, representing the 
baseline number of simultaneous surveillances is published for each 
county and market service area in the appendices to the final 
notice.
---------------------------------------------------------------------------

    We first examined the data for geographic regions with low 
historical experience figures, and correspondingly low capacity 
requirements. Within this group, the portion of total historical 
experience that consisted of communications interceptions varied 
widely. For example, for counties with a total historical experience of 
10 or less, the percentage amount of communications interceptions from 
total historical experience ranged from zero to 100. The same variance 
(zero to 100) was found for wireless services licensed by MSA/RSA, MTA 
and BTA, but only in market service areas with a total historical 
experience of 5 or less.\9\
    Continuing with this comparison process for regions with 
successively higher total historical experience amounts, we found that 
the percentage of communications interceptions tended to decrease as 
the total historical experience increased. For the county with the 
highest historical experience, we found that 25 percent of the total 
experience were communications interceptions. For the market services 
area with the highest historical experience, 50 percent of the total 
historical experience consisted of communications interceptions.
---------------------------------------------------------------------------

    \9\ We used the historical interception activity of cellular 
carriers to develop projections of future capacity requirements for 
PCS carriers. See 63 FR 12226.
---------------------------------------------------------------------------

3. Establishment of Percentage Groups
    Based on the overall relationships described above, we determined 
that a breakdown of the capacity requirements by surveillance type 
could be achieved by placing limits on the extent to which the number 
of surveillances reflected in the capacity requirements could include 
communications interceptions. The tendency in our data, as described 
above, was for a decreasing proportion of communications interceptions 
as the total number of surveillances increased. We concluded therefore 
that a set of percentages that decrease as historical experience 
increases, could be used to limit the number of communications 
interceptions as a proportion of the total capacity requirement.
    We therefore established decreasing percentages, and assigned 
groups of particular geographic regions to those percentages 
(hereinafter ``percentage groups'') with respect to all counties and 
market service areas described in the final notice. For counties, the 
FBI has established four percentage groups: 100, 75, 50, and 25 
percent. For each of the three different types of wireless geographic 
regions (i.e., MSA/RSA, MTA, and BTA) the FBI has established three 
percentage groups: 100, 75, and 50 percent.
    As explained further below, the applicable percentage indicates the 
highest proportion of capacity requirements (actual and maximum 
capacity requirements) that could consist of communications 
interceptions. Regions with low historical experience, and 
correspondingly low capacity requirements, fall within the 100 percent 
group. A carrier operating within such a region must be able to 
accommodate the number of surveillances indicated by the capacity 
requirement such that all (100 percent) of the surveillances are 
communications interceptions, or all are pen registers/traps and 
traces, or some combination of both types of surveillance equal to the 
capacity requirement. This is consistent with our findings regarding 
the variability of the types of surveillances within the historical 
experience of regions with low levels of such experience.
    At the other end of the range, regions with high historical 
experience levels fall within the 25 percent group for counties, or the 
50 percent group for market service areas. Carriers operating within 
these regions must still be able to accommodate the total number of 
surveillances indicated by their capacity requirement, but the 
proportion of that number that could be communications interceptions is 
limited by the applicable percentage. The determination of the 
percentage groups and the application of the percentage is described in 
further detail below.
4. Determination of Percentage Groups Applicable to Geographic Regions
    Carriers can determine the applicable percentage group by looking 
at the ``historical experience'' number associated with their capacity 
requirements as published in the final notice.
    We assigned particular regions to the percentage groups based on 
their total historical experience. We first examined the historical 
data to locate the region with the highest number of historical 
surveillances wherein 100 percent of them were communications 
interceptions. This number was 10 for capacity requirements determined 
by county and 5 for capacity requirements determined by market service 
area. This number became the upper limit of the 100 percent group, and 
all counties with a historical experience of 10 or less, and market 
service areas with a historical experience of 5 or less, were then 
deemed within the 100 percent group.
    The process was continued by examining the historical data for all 
those counties not already falling within the 100 percent group, in 
order to determine the appropriate upper limit for the 75 percent 
group. We examined the data for the remaining regions for the highest 
number of surveillances wherein 75 percent of the total consisted of 
communications interceptions. This number was 44 for counties and 10 
for market service areas. Again, the process was continued with those 
geographic regions not already deemed to be within the 100 or 75 
percent groups. That is, we examined the data regarding the remaining 
regions to determine the region with the highest number of historical 
surveillances wherein 50 percent of the total consisted of 
communications interceptions. This number was 100 for counties. For 
wireless market service areas, this number was 106, which was also the 
highest historical experience figure. Hence, all remaining market

[[Page 68119]]

service areas, those with historical experience figures between 11 and 
106 (inclusive), were assigned to the 50 percent group. For wireline 
services, the remaining counties with a historical experience of 101 or 
more, were determined to be within the 25 percent group.
    Thus, the percentage group applicable to a particular county or 
market service area can be determined according to its total historical 
experience, as summarized below.
a. Counties
    Counties with a total historical experience between 0 and 10 
(inclusive), are in the 100 percent group; between 11 and 44 
(inclusive), are in the 75 percent group; between 45 and 100 
(inclusive) are in the 50 percent group; and greater than 100, are in 
the 25 percent group. The following chart summarizes these 
determinations:

------------------------------------------------------------------------
                                                              Percentage
                    Historical experience                        group
------------------------------------------------------------------------
0-10........................................................         100
11-44.......................................................          75
45-100......................................................          50
101 or more.................................................          25
------------------------------------------------------------------------

b. Market Service Areas
    The following describes the percentage groups for wireless carriers 
regardless of the type of geographic region (MSA/RSA, MTA, and BTA). 
Market service areas with a total historical experience between zero 
and five (inclusive) are in the 100 percent group; between six and ten 
(inclusive) are in the 75 percent group; and greater than ten, are in 
the 50 percent group. The following chart summarizes these 
determinations:

------------------------------------------------------------------------
                                                              Percentage
                    Historical experience                        group
------------------------------------------------------------------------
0-5.........................................................         100
6-10........................................................          75
11 or more..................................................          50
------------------------------------------------------------------------

5. Application of Percentage to Actual and Maximum CapacityRequirements
    Carriers can use the applicable percentage to determine the number 
of simultaneous communications interceptions that they should be 
capable of accommodating within their total capacity requirements.
    As described above, the actual and maximum capacity requirements 
specify a total number of surveillances. The applicable percentage is 
then multiplied by the capacity requirement to determine the highest 
number of simultaneous surveillances that could be in the form of 
communications interceptions. If the calculation results in a fraction, 
then the number of communications interceptions should be rounded up.
    The percentage does not change the total number of surveillances 
specified in the actual and maximum capacity requirements, and does not 
change the total number of surveillances that carriers must be able to 
accommodate simultaneously in order to meet the capacity requirements. 
In cases where the carrier's capacity requirements fall within the 75 
percent group, or lower, the percentage will clearly limit the number 
of simultaneous communications interceptions that a carrier is required 
to be capable of accommodating. Thus, a carrier must at all times be 
able to accommodate a number of surveillances equal to its capacity 
requirement, and the total number of surveillances may be all pen 
registers/traps and traces or a combination of these and communications 
interceptions. However, the number of communications interceptions will 
not exceed the limit, if any, indicated by the applicable percentage. 
The examples below will illustrate this.
Example 1
    Montgomery County, Maryland has a historical experience of 66, an 
actual capacity requirement of 84, and a maximum capacity requirement 
of 110. The historical experience of 66 places it within the 50 percent 
group. Multiplying the percentage by the capacity requirements 
indicates that the actual capacity requirement is limited to 42 
communications interceptions and the maximum capacity requirement is 
limited to 55 communications interceptions. A carrier providing service 
in this county is required to be capable of accommodating an actual 
capacity of 84 pen registers/traps and traces, or any combined number 
of surveillances equal to 84 where the number of communications 
interceptions is equal to 42 or less. For example, the carrier must be 
capable of accommodating 42 simultaneous communications interceptions 
and 42 simultaneous pen registers/traps and traces. For a further 
example, the carrier must be capable of accommodating 10 simultaneous 
communications interceptions and 74 simultaneous pen registers/traps 
and traces. The same form of analysis applies to the maximum capacity 
requirements.
Example 2
    Metropolitan Statistical Area / Rural Statistical Area (MSA/RSA) 
234, Athens, Georgia, has a historical experience of 7, an actual 
capacity requirement of 12, and a maximum capacity requirement of 20. 
The historical experience of 7 places it within the 75 percent group. 
Multiplying the percentage by the capacity requirements indicates that 
the actual capacity requirement is limited to 9 communications 
interceptions and the maximum capacity requirement is limited to 15 
communications interceptions. A carrier providing service in this MSA/
RSA is required to be capable of accommodating an actual capacity of 12 
pen registers/traps and traces, or any combined number of both types of 
surveillances equal to 12, where the number of communications 
interceptions is equal to 9 or less. For example, the carrier must be 
capable of accommodating 9 simultaneous communications interceptions 
and 3 simultaneous pen registers/traps and traces. For a further 
example, the carrier must be capable of accommodating 2 simultaneous 
communications interceptions and 10 simultaneous pen registers/traps 
and traces. The same form of analysis applies to the maximum capacity 
requirements.
Example 3
    Harris County, Texas has a historical experience of 294, an actual 
capacity requirement of 371, and a maximum capacity requirement of 484. 
The historical experience of 294 places it within the 25 percent group. 
Twenty-five percent of 371 is 92.75, which is rounded up to 93. The 
actual capacity requirement is limited to 93 communications 
interceptions and the maximum capacity requirement is limited to 121 
communications interceptions. A carrier providing service in this 
county is required to be capable of accommodating an actual capacity of 
371 pen registers/traps and traces, or any combined number of both 
types of surveillances equal to 371 where the number of communications 
interceptions is equal to 93 or less. For example, the carrier must be 
capable of accommodating 93 simultaneous communications interceptions 
and 278 simultaneous pen registers/traps and traces. For a further 
example, the carrier must be capable of accommodating 10 simultaneous 
communications interceptions and 361 simultaneous pen registers/traps 
and traces. The same form of analysis applies to the maximum capacity 
requirements.

[[Page 68120]]

III. Applicable Administrative Procedures and Executive Orders

A. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. requires the 
preparation of an initial regulatory flexibility analysis whenever an 
agency is required by law ``to publish general notice of proposed 
rulemaking for any proposed rule.'' 5 U.S.C. 603(a). This publication 
provides our response to the remand instructions of the Court of 
Appeals, by providing further explanation and guidance regarding the 
final notice of capacity issued pursuant to CALEA, 47 U.S.C. 1003. We 
are not republishing the final notice of capacity, and are therefore 
not changing the final regulatory flexibility analysis provided with 
the final notice. Rather, this publication pertains only to the two 
discrete issues remanded by the Court, those being our interpretation 
of the term ``simultaneously'' and our decision to present only one 
``actual'' and one ``maximum'' capacity requirement per geographic 
region. Our initial regulatory flexibility analysis is therefore 
limited to those issues.
    The reason for this publication is to respond to the Court's remand 
instructions. Our objective in issuing it, is to provide further 
explanation for our interpretation of the term ``simultaneously'' and 
to provide additional guidance on the application of the capacity 
requirements with respect to different types of surveillance 
(interceptions versus pen registers/traps and traces).
    The Regulatory Flexibility Act requires a description of, and if 
feasible, an estimate of the number of small entities to which a 
proposed rule will apply. 5 U.S.C. 603(b)(3). A ``small entity'' in the 
wired or wireless telecommunications business includes an entity that 
is independently owned and operated, not dominant in its field of 
operation, and has fewer than 1,500 employees. 5 U.S.C. 601(6)(1); 15 
U.S.C. 632; 13 CFR 121.201. The Bureau of the Census issued the 1997 
Economic Census on October 20, 2000. The Economic Census profiles the 
U.S. economy every 5 years, from the national to the local level. The 
2002 Economic Census is currently being conducted, and thus the 1997 
data represents the most current information. The 1997 Economic Census 
reports that there were 2,797 wired telecommunications communications 
(NAICS code 513310) firms, of which all but 24 had fewer than 1,000 
employees. See 1997 Economic Census, Establishment and Firm Size, 
Publication EC97S51S-SZ. It further reports that there were 1,238 
cellular and other wireless telecommunications (NAICS code 513322) 
firms, of which all but 12 had fewer than 1,000 employees. Firms 
engaged as telecommunications resellers (NAICS code 513330) numbered 
1,417, of which all but 2 had fewer than 1,000 employees. We are 
unaware of any source of further information from which we could 
determine the number of firms that are independently owned and operated 
and not dominant in their field of operation.
    This publication imposes no reporting or record-keeping 
requirements. The final notice imposed certain compliance requirements, 
the application of which is further guided and clarified by the 
statements herein. We are not republishing the final notice, nor 
changing the existing numerical capacity requirements stated therein. 
We are also providing further guidance as to the application of the 
capacity requirements in regions with the highest requirements, by 
setting a maximum number of communications interceptions that is lower 
than the total capacity requirement. The economic impact of compliance 
with the capacity requirements for small entities that operate in 
regions affected by this guidance, therefore, might be lowered if the 
entity employed a system that could benefit from a requirement for 
fewer simultaneous communications interceptions. In all other cases the 
economic impact created by the final notice will remain unchanged by 
this publication. We therefore find that there will be no significant 
economic impact on small businesses as a result of this publication. 
The FBI is unaware of any rules which would overlap, duplicate or 
conflict with this publication or the statements therein.

B. Executive Order 12866: Regulatory Planning and Review

    This publication has been drafted and reviewed in accordance with 
Executive Order 12866. The FBI does not find that it constitutes a 
``significant regulatory action'' in accordance with that Order. In 
particular, we had already determined that the final notice of capacity 
did not meet the criterion for a ``significant regulatory action'' and 
that it would not result in an annual impact on the economy in excess 
of $100,000,000, nor would economically impact State, local or tribal 
governments. 63 FR 12220. This publicaton does not significantly alter 
the economic analysis contained in the final notice, except that 
compliance costs may be reduced in some cases.
    In this publication, we are neither republishing the final notice, 
nor changing the existing numerical capacity requirements stated 
therein. We are providing further guidance as to the application of the 
capacity requirements in regions with the highest requirements, by 
setting a maximum number of communications interceptions that is lower 
than the total capacity requirement. The economic impact of compliance 
with the capacity requirements for entities that operate in regions 
affected by this guidance, therefore, might be lowered if the entity 
employed a system that could benefit from a requirement for fewer 
simultaneous communications interceptions. In all other cases the 
economic impact created by the final notice, remains unchanged by this 
publication. Although not required by Executive Order 12866, this 
publication has been submitted for review by the Office of Management 
and Budget.

C. Executive Order 13132: Federalism

    This publication will not have a substantial direct effect of the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this publication does not have any 
federalism implications that warrant preparation of a federalism impact 
statement.

D. Executive Order 12988: Civil Justice Reform

    This publication meets the applicable standards set forth in 
sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform.

E. Unfunded Mandates Reform Act of 1995

    We determined in the final notice of capacity that it would not 
result in the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and it will not significantly or uniquely affect small 
governments. This publication only provides further explanation and 
guidance with regard to two matters contained in the final notice of 
capacity and would neither alter the analysis contained in the final 
notice, nor would result in any increase in any expenditures. 
Therefore, no actions deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532(a).

[[Page 68121]]

F. Small Business Regulatory Enforcement Fairness Act of 1996

    This publication is not a major rule as defined by the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. We 
determined in the final notice of capacity that it would not have an 
annual effect on the economy of $100,000,000 or more; would not cause a 
major increase in costs or prices; and would not result in a 
significant adverse effect on competition, employment, investment or 
productivity, and innovation, or on the ability of the United States-
based companies to compete with foreign-based companies in domestic and 
export markets. This publication only provides further explanation and 
guidance with regard to two matters contained in the final notice of 
capacity and would neither alter the analysis contained in the final 
notice, nor would result in any increase in expenditures. Some 
reductions in expenditures by small businesses are possible in certain 
cases.

G. Paperwork Reduction Act

    This Supplement contains no information collection or record-
keeping requirements under the Paperwork Reduction Act, 44 U.S.C. 3501 
et seq.

    Dated: November 4, 2003.
Valerie E. Caproni,
General Counsel, Federal Bureau of Investigation.
[FR Doc. 03-30258 Filed 12-4-03; 8:45 am]
BILLING CODE 4410-02-P