28 September 1999
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html
-------------------------------------------------------------------------
[Federal Register: September 28, 1999 (Volume 64, Number 187)]
[Rules and Regulations]
[Page 52244-52246]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se99-14]
[[Page 52244]]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 97-213; FCC 99-184]
Implementation of the Communications Assistance for Law
Enforcement Act
AGENCY: Federal Communications Commission
ACTION: Final rule; reconsideration
-----------------------------------------------------------------------
SUMMARY: This decision revises rules previously adopted to implement
sections of the Communications Assistance for Law Enforcement Act. In
particular, the Commission eliminates the requirement that
telecommunications carriers retain records of call content or
associated call-identifying information of any unauthorized or
authorized interceptions. This decision also eliminates the ten-year
retention requirement for such material regarding unauthorized
interceptions. Instead, carriers must maintain their certification of
such call intercepts for a reasonable period of time. The action is
taken to make the rules more in keeping with Congressional intent. This
decision adopts modified information collections subject to the
Paperwork Reduction Act of 1995 (PRA). The general public and other
Federal agencies are invited to comment on the proposed or modified
information collections contained in this proceeding.
DATES: These rules contain information collections that have not been
approved by OMB. The Commission will publish a document in the Federal
Register announcing the effective dates of these rules. Public and
agency comments are due on the information collections November 29,
1999.
FOR FURTHER INFORMATION CONTACT: Thomas Wasilewski, 202-418-1310. For
further information concerning the information collections contained in
this Report and Order, contact Les Smith, Federal Communications
Commission, Room 1A-804, 445 12th Street, S.W., Washington, DC 20054,
or via the Internet at lesmith@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration (Order) in CC Docket No. 97-213; FCC 99-184, adopted
July 16, 1999, and released August 2, 1999. The complete text of this
Order is available for inspection and copying during normal business
hours in the FCC Reference Information Center, Courtyard Level, 445
12th Street, S.W., Washington, DC, and also may be purchased from the
Commission's copy contractor, International Transcription Services
(ITS, Inc.), CY-B400, 445 12th Street, S.W., Washington, DC.
Synopsis of the Order on Reconsideration
1. The Commission, on its own motion, adopts an Order on
Reconsideration (Order) in CC Docket No. 97-213, regarding
implementation of the Communications Assistance for Law Enforcement Act
(CALEA). This Order is a limited reconsideration of the Commission's
Rule, adopted in the Report and Order (R&O) in this proceeding. (FCC
99-11.) regarding obligations placed upon carriers to maintain secure
and accurate records or wiretap, pen register, and trap and trace
interceptions.
2. Section 64.2104(b) of the Commission rules adopted in the R&O,
erroneously required carriers to retain records of call information and
unauthorized interceptions, including the content of such
interceptions, for ten years, and erroneously required carriers to
retain records of content of authorized interceptions. The Commission
thus eliminates these requirements and instead finds that carriers
should maintain the certification, as described in Sec. 64.2104(a) for
``a reasonable period of time.''
Administrative Matters
Supplemental Regulatory Flexibility Act Statement
3. As required by the Regulatory Flexibility Act (RFA),1
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in
the Notice of Proposed Rulemaking (NPRM) 2 in this
proceeding implementing the Communications Assistance for Law
Enforcement Act (CALEA or the Act). The Commission sought written
public comment on the proposals in the NPRM, including the IRFA. A
Final Regulatory Flexibility Analysis (FRFA) conforming to the RFA was
then incorporated into the Report and Order implementing section 105 of
the Act. The Commission's Supplemental Final Regulatory Flexibility
Analysis (Supplemental FRFA) in this Order reflects revised or
additional information to that contained in the FRFA. The Supplemental
FRFA is thus limited to matters raised in response to the R&O and
addressed in this Reconsideration. This Supplemental FRFA conforms to
the RFA.3
---------------------------------------------------------------------------
\1\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 601 et seq., has been
amended by the Contract with America Advancement Act, Public Law No.
104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
\2\ 62 FR 63302, November 28, 1997.
\3\ See 5 U.S.C. 604.
---------------------------------------------------------------------------
(a) Need for and Purpose of this Action
4. The actions taken in this Order are in response to letters
requesting clarification of the rules that erroneously require carriers
to retain records of call content or associated call-identifying
information of any unauthorized or authorized interceptions. The
limited revisions made in the Order are intended to clarify the rules
adopted in the R&O by eliminating these erroneous requirements.
(b) Summary of the Issues Raised by Public Comments Made in Response to
the FRFA
5. No comments were received in direct response to the FRFA, but
the Commission received several letters requesting clarification of the
rules adopted in the R&O. After release of the R&O, but prior to
publication of the rules in the Federal Register, the Commission
received letters from CTIA and AirTouch stating that Sec. 64.2104(b) of
the new rules erroneously requires carriers to retain records of call-
identifying information and unauthorized interceptions, including the
content of such interceptions, and erroneously requires carriers to
retain records of content of authorized interceptions. Subsequently,
the Federal Bureau of Investigation (FBI) sent the Commission a letter
supporting the position taken by CTIA and AirTouch on this issue,
stating that those requirements ``are not mandated by section 105 of
CALEA and that, in some respects, compliance with these requirements
could cause a carrier to violate federal electronic surveillance
laws,'' since those laws do not require or entitle carriers to acquire
and retain such information, but merely direct them, according to
lawful court orders and other authorizations, to provide the technical
assistance necessary to aid law enforcement in making intercepts.
(c) Description and Estimates of the Number of Entities Affected by
This Report and Order
6. A Final Regulatory Flexibility Analysis was incorporated into
the R&O. In that analysis, the Commission described in detail the small
entities that might be significantly affected by the rules adopted in
the R&O. Those entities may be found in a number of wireless services
including: telephone companies, wireline carriers and service
[[Page 52245]]
providers, local exchange carriers, interexchange carriers, competitive
access providers, wireless radiotelephone carriers, cellular licensees,
mobile service carriers, broadband personal communications service, SMR
licensees, resellers, pay telephone operators, cable services or
systems, and other pay services. In this Order, the Commission hereby
incorporates by reference the description and estimate of the number of
small entities from the previous FRFA in this proceeding.
7. The rule changes in this Order will affect small entities as
indicated in the FRFA presented in the R&O. To the extent that a rule
change here affects a particular wireless service, our estimates
contained in the R&O, remain valid as to the size of those services.
(d) Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
8. In this Order, the Commission adopts no new rules and impose no
additional reporting, recordkeeping or other compliance requirements.
The Commission does, however, adopt specific rule changes clarifying
that we no longer find telecommunications carriers should retain the
content or call-identifying information of any interceptions of
communications. Moreover, the Commission no longer finds the 10 year
record retention requirement to be necessary, since it was originally
implemented in order to remain consistent with the record retention
requirement in 18 U.S.C. 2518(8)(a) with regard to content of
authorized call intercepts. Since the Commission is no longer requiring
carriers to maintain records of content or call-identifying
information, we find it more appropriate to allow carriers to maintain
the certification for a ``reasonable period of time''. Thus, we are
making conforming changes in Sec. 64.2104(b) of the Commission Rules by
modifying the rules expressed in paragraph (f) of new Sec. 64.2103 and
paragraph (b) of new Sec. 64.2104, as they appear in the R&O, and
replace them with a revised final Secs. 64.2103(f) and 64.2104(b) of
the Commission's Rules, as set forth in this Order.
(e) Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
9. The analysis of the Commission's efforts to minimize the
possible significant economic impact on small entities as described in
the FRFA, is unchanged by the Order, save that the removal of the
recordkeeping obligations described in section (d) above will result in
a reduction of the recordkeeping burden for all entities affected by
the R&O and this Order.
(f) Report to Congress
10. The Commission shall send a copy of this Order, including this
Supplemental FRFA, in a report to Congress pursuant to the Small
Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C.
801(a)(1)(A). In addition, the Commission shall send a copy of this
Order, including this Supplemental FRFA, to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of this order and
Supplemental FRFA (or summaries thereof) will also be published in the
Federal Register.
Ordering Clauses
11. Accordingly, it is ordered that, pursuant to 47 CFR 1.108,
(4)(i) and 4(j), and section 229 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), and 229, and section 105 of the
Communications Assistance for Law Enforcement Act, 47 U.S.C. 1004,
Sec. 64.2104(b) of the Commission's rules, 47 CFR 64.2104(b), is
modified as set out in this decision.
12. It is further ordered that the rules set forth in this decision
will become effective 90 days after publication in the Federal
Register.
13. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this Order
on Reconsideration, including the Supplemental Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
Paperwork Reduction Act
14. This Order contains a modified information collection. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public to comment on the possible
information collections contained in this Order, as required by the
Paperwork Reduction Act of 1995, Public Law No. 104-13. Written
comments must be submitted by the public and by other Agencies on the
proposed information collections on or before November 29, 1999.
Comments should address: (1) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (2) the accuracy of the Commission's burden estimates; (3)
ways to enhance the quality, utility, and clarity of the information
collected; and (4) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0809.
Title: Communications Assistance for Law Enforcement Act, Order on
Reconsideration.
Form No.: N.A.
Type of Review: Modification of Existing Collection.
Respondents: Business and other for-profit and non-profit
institutions.
Number of Respondents: 5,000.
Estimated Time Per Response: 25 hours.
Needs and Uses: This modification decreases the recordkeeping
burden on carriers imposed in the R&O, to remain constistent with the
record retention requirement in 18 U.S.C. 2518(8)(a).
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Part 64 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for Part 64 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 201, 202, 205, 218-220, and 332
unless otherwise noted. Interpret or apply 201, 218, 225, 226, 227,
229, 332, 48 Stat. 1070, as amended. 47 U.S.C. 201-204, 218, 225,
226, 227, 229, 332, 501 and 503 unless otherwise noted.
2. Section 64.2103 is amended by revising paragraph (f) to read as
follows:
Sec. 64.2103 Policies and procedures for employee supervision and
control.
* * * * *
(f) Include, in its policies and procedures, a detailed description
of how long it will maintain its records of each interception of
communications or access to call-identifying information pursuant to
Sec. 64.2104.
3. Section 64.2104 is amended by revising paragraph (b) to read as
follows:
Sec. 64.2104 Maintaining secure and accurate records.
* * * * *
(b) A telecommunications carrier shall maintain the secure and
accurate records set forth in paragraph (a) for a
[[Page 52246]]
reasonable period of time as determined by the carrier.
* * * * *
[FR Doc. 99-25145 Filed 9-27-99; 8:45 am]
BILLING CODE 6712-01-P