[Federal Register: May 10, 1996 (Volume 61, Number 92)]
[Proposed Rules]
[Page 21396-21404]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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[[Page 21396]]
DEPARTMENT OF JUSTICE
Federal Bureau of Investigation
28 CFR Part 100
RIN 1105-AA39
Implementation of Section 109 of the Communications Assistance
for Law Enforcement Act
AGENCY: Federal Bureau of Investigation, DOJ.
ACTION: Proposed rule.
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SUMMARY: This rule establishes the procedures whereby
telecommunications carriers can recover the costs associated with
complying with the Communications Assistance for Law Enforcement Act
(CALEA), which requires telecommunications carriers to ensure law
enforcement's ability, pursuant to court order or other lawful
authorization, to intercept communications notwithstanding advanced
telecommunications technologies.
DATES: Written comments must be received on or before July 9, 1996.
ADDRESSES: Comments should be submitted in triplicate to the
Telecommunications Contracts and Audit Unit, Federal Bureau of
Investigation, P.O. Box 221286, Chantilly, VA 22022-1286, Attention:
CALEA FR Representative, telephone number (703) 814-4900.
FOR FURTHER INFORMATION CONTACT:
Walter V. Meslar, Unit Chief, Telecommunications Contracts and Audit
Unit, Federal Bureau of Investigation, P.O. Box 221286, Chantilly, VA
22022-1286, telephone number (703) 814-4900.
SUPPLEMENTARY INFORMATION: Recent and continuing advances in
telecommunications technology and the introduction of new digitally-
based services and features have, in some instances, impaired the
ability of federal, state, and local law enforcement agencies to fully
and properly conduct various types of court-authorized electronic
surveillance. Therefore, on October 25, 1994, the President signed into
law the Communications Assistance for Law Enforcement Act (CALEA)
(Public Law 103-414, 47 U.S.C. 1001-1010). This law requires
telecommunications carriers, as defined in CALEA, to ensure law
enforcement's ability, pursuant to court order or other lawful
authorization, to intercept communications notwithstanding advanced
telecommunications technologies.
Under CALEA, certain implementation responsibilities are conferred
upon the Attorney General; the Attorney General has, in turn, delegated
responsibilities set forth in CALEA to the Director, FBI, or his
designee, pursuant to 28 CFR 0.85(o). The Director, FBI, has designated
personnel in the Engineering Section of the Information Resources
Division and the Property Procurement and Management Section of the
Finance Division to carry out these responsibilities.
Definition of ``Telecommunications Carrier''
CALEA defines a ``telecommunications carrier'' as any ``person or
entity engaged in the transmission or switching of wire or electronic
communications as a common carrier for hire'' (section 102(8)(A)), and
includes any ``person or entity engaged in providing commercial mobile
service, (as defined in section 332(d) of the Communication Act of
1934, as amended (47 U.S.C. 332(d))'' (section 102(8)(B)). This
definition includes, but is not limited to, local exchange and
interexchange carriers; competitive access providers; resellers, cable
operators, utilities, and shared tenant services providers, to the
extent that they offer telecommunications services as common carriers
for hire; cellular telephone companies; personal communications
services (PCS) providers; satellite-based mobile communications
providers; specialized mobile radio services (SMRS) providers and
enhanced SMRS providers; and paging service providers.
The Federal Communications Commission (FCC) may determine that a
person or entity who is not a common carrier is subject to CALEA if
that person or entity provides wire or electronic communication service
and the FCC concludes that such service is a replacement for a
substantial portion of the local telephone exchange service and that it
is in the public interest to deem such a person or entity to be a
telecommunications carrier for purposes of CALEA.
The definition does not include (1) persons or entities insofar as
they are engaged in providing information services such as electronic
publishing and messaging services; and (2) any class or category of
telecommunications carriers that the FCC exempts by rule after
consultation with the Attorney General.
Capability Requirements
CALEA requires telecommunications carriers to ensure that, within
four years of the date of enactment, their systems have the capability
to meet the Assistance Capability Requirements as described in section
103 of CALEA. These requirements are that a telecommunications carrier
shall ensure that its equipment, facilities, or services that provide a
customer or subscriber with the ability to originate, terminate, or
direct communications are capable of--
(1) expeditiously isolating and enabling the government, pursuant
to a court order or other lawful authorization, to intercept, to the
exclusion of any other communications, all wire and electronic
communications carried by the carrier within a service area to or from
equipment, facilities, or services of a subscriber of such carrier
concurrently with their transmission to or from the subscriber's
equipment, facility, or service, or at such later time as may be
acceptable to the government;
(2) expeditiously isolating and enabling the government, pursuant
to a court order or other lawful authorization, to access call-
identifying information that is reasonably available to the carrier--
(A) before, during, or immediately after the transmission of a wire or
electronic communications (or at such later time as may be acceptable
to the government); and (B) in a manner that allows it to be associated
with the communication to which it pertains, except that, with regard
to information acquired solely pursuant to the authority for pen
registers and trap and trace devices (as defined in section 3127 of
Title 18, United States Code), such call-identifying information shall
not include any information that may disclose the physical location of
the subscriber (except to the extent that the location may be
determined from the telephone number);
(3) delivering intercepted communications and call-identifying
information to the government, pursuant to a court order or lawful
authorization, in a format such that they may be transmitted by means
of equipment, facilities, or services procured by the government to a
location other than the premises of the carrier; and
(4) facilitating authorized communication interceptions and access
to call-identifying information unobtrusively and with a minimum of
interference with any subscriber's telecommunications service and in a
manner that protects--(A) the privacy and security of communications
and call-identifying information not authorized to be intercepted; and
(B) information regarding the government's interception of
communications and access to call-identifying information.
[[Page 21397]]
Under section 107(a)(2) of CALEA, a carrier will be deemed to be in
compliance if it adheres to publicly available technical requirements,
feature descriptions, or standards adopted by an industry association
or standard-setting organization relevant to CALEA. Telecommunications
carriers may also develop their own solutions. In any case, carriers
must meet the requirements set forth in Section 103 of CALEA. If no
technical requirements or standards are issued, or if they are
challenged as being deficient, upon petition, the FCC has authority to
develop them through a rule making.
Capacity Requirements
Section 104 of CALEA requires that the Attorney General, after
seeking public notice and comment, establish and publish:
(1) Notice of the actual number of communications interceptions,
pen registers, and trap and trace devices representing a portion of the
maximum capacity required to accommodate all of the communication
interceptions, pen registers, and trap and trace devices that the
Attorney General estimates that the government agencies authorized to
conduct electronic surveillance may conduct and use simultaneously by
the date 4 years after the date of enactment of CALEA, and
(2) Notice of the maximum capacity required to accommodate all of
the communication interceptions, pen registers, and trap and trace
devices that the Attorney General estimates that the 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.
On October 16, 1995 the FBI proposed for comment those notices (60
FR 53643), and on November 9, 1995 the comment period was extended
until January 16, 1996.
Section 104 of CALEA also provides that within 180 days after the
publication of the final notice of capacity requirements, a
telecommunications carrier shall submit to the Attorney General a
statement identifying any of the systems or services that do not have
the capacity to accommodate simultaneously the number of interceptions,
pen registers, and trap and trace devices set forth in that notice. The
FBI intends to use those statements as a basis from which to solicit
cooperative agreements to reimburse carriers for reasonable costs of
modifications performed to comply with CALEA capability and capacity
requirements, based on available funding.
Industry Implementation
Industry's compliance with the requirements set forth in section
103 of CALEA is affected by a number of interrelated factors, including
whether the Attorney General is required to, and has agreed to, pay for
needed modifications, and whether the equipment, facility, or service
was installed or deployed on or before January 1, 1995.
In the case of equipment, facilities, and services installed or
deployed after January 1, 1995, compliance is dependant upon whether
the necessary modifications are reasonably achievable as determined by
the FCC using criteria set forth in CALEA. These criteria are as
follows:
(1) The effect on public safety and national security.
(2) The effect on rates for basic residential telephone service.
(3) The need to protect the privacy and security of communications
not authorized to be intercepted.
(4) The need to achieve the capability assistance requirements of
section 103 of CALEA by cost effective methods.
(5) The effect on the nature and cost of the equipment, facility or
service at issue.
(6) The effect on the operation of the equipment, facility, or
service at issue.
(7) The policy of the United States to encourage the provision of
new technologies and services to the public.
(8) The financial resources of the telecommunications carrier.
(9) The effect on competition in the provision of
telecommunications services.
(10) The extent to which the design and development of the
equipment, facility, or service was initiated before January 1, 1995.
(11) Such other factors as the FCC determines are appropriate.
Telecommunications carriers also may petition regulatory
authorities to adjust charges, practices, classifications, and
regulations to recover costs expended for making needed modifications
to equipment, facilities, or services pursuant to the assistance
capability requirements of CALEA section 103. CALEA also includes
provisions for exemption, extension of the compliance date,
consultation with industry, and systems security. Noncompliance may
lead to civil actions by the Attorney General and the imposition of
civil fines. In addition, it requires telecommunications transmission
and switching equipment manufacturers, as well as providers of
telecommunications support services, to cooperate with
telecommunications carriers in achieving the required capacities and
capabilities.
Section 109 of CALEA, Payment of Costs of Telecommunications
Carriers to Comply with Capability Requirements, authorizes the
Attorney General, subject to the availability of appropriations, to
agree to pay telecommunications carriers for: (1) all reasonable costs
directly associated with the modifications performed by carriers in
connection with equipment, facilities, and services installed or
deployed on or before January 1, 1995, to establish the capabilities
necessary to comply with section 103 of CALEA; (2) additional
reasonable costs directly associated with making the assistance
capability requirements found in section 103 of CALEA reasonably
achievable with respect to equipment, facilities, or services installed
or deployed after January 1, 1995, in accordance with the procedures
established in CALEA section 109(b); and, (3) reasonable costs directly
associated with modifications of any of a carrier's systems or
services, as identified in the Carrier Statement required by CALEA
section 104(d), which do not have the capacity to accommodate
simultaneously the number of interceptions, pen registers, and trap and
trace devices set forth in the Capacity Notice(s) published in
accordance with CALEA section 104.
CALEA section 109(e), Cost Control Regulations, authorizes the
Attorney General, after notice and comment, to establish regulations
necessary to effectuate timely and cost-efficient payment to
telecommunications carriers under CALEA, under 18 U.S.C. chapters 119
and 121 and under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
CALEA directs the Attorney General to consult with the FCC prior to
the establishment of regulations that will allow for cost recovery by
telecommunications carriers of reasonable costs incurred for
compliancy.
Regulations shall minimize the cost to the Federal Government and
permit recovery by telecommunications carriers of the direct costs of
developing necessary modifications for CALEA compliance, including
providing the capabilities requested, providing capacities requested,
the costs of training personnel in the use of such capabilities and
capacities, and the direct costs of deploying or installing such
capabilities and capacities.
In the case of any modification that may be used for any purpose
other than lawfully authorized electronic surveillance by a law
enforcement agency of a government, CALEA permits
[[Page 21398]]
the recovery of only the incremental cost of making the modification
suitable for such law enforcement purposes.
Establishment of Cost Recovery Rules and Procedures
The regulations proposed herein are intended to ensure that each
carrier's practices used in estimating costs are consistent with the
current cost accumulating and reporting procedures utilized by the
carrier for the preparation of its financial statements. Further, these
regulations establish that not all expenses reportable in accordance
with generally accepted accounting principles will be eligible for
reimbursement. Consistency in the application of cost accounting
practices is necessary to enhance the likelihood that comparable
transactions are treated alike. Consistent application of internal cost
accounting practices will facilitate the preparation of reliable cost
estimates and allow comparison with the costs of performance. Such
comparisons provide an important basis for financial control over costs
and aid in establishing accountability for cost in the manner agreed to
by both parties.
These regulations also ensure that each cost is allocated only once
and on only one basis to a cost group. The criteria for determining the
allocation of costs to a cost group should be the same for all similar
groupings.
The following proposed cost recovery rules will be incorporated in
any cooperative agreement established under section 109 of CALEA and
entered into between the carriers and the FBI. Subsequent to the
submission to the FBI of the Carrier Statements, as required under
section 104(d) of CALEA, the FBI will directly solicit cooperative
agreements from the carriers based upon available funding. A separate
Federal Register notice concerning carrier statements will be published
soon. These rules were developed to establish the procedures whereby
carriers may seek reimbursement under section 109(a) and 104(e) of
CALEA. Cost recovery under section 109(b)(2) of CALEA will be
determined pursuant to the procedures set forth in section 109(b)(1) of
CALEA in accordance with these cost recovery rules as promulgated. To
the extent possible, these rules will allow carriers to utilize their
existing accounting procedures to record the costs of bringing
equipment, facilities, and services into compliance with CALEA.
Applicable Administrative Procedures and Executive Orders
Regulatory Flexibility Act
As required by section 603 of the Regulatory Flexibility Act, the
FBI has prepared this Initial Regulatory Flexibility Analysis (IRFA)
section to ascertain the expected impact on small entities of the
regulations proposed in this document. The FBI is obligated to
implement the mandate of Congress as set out in CALEA. Therefore, these
regulations were developed to establish the mechanism whereby
telecommunications carriers can recover the costs associated with
complying with CALEA. The FBI seek to subject all carriers to the same
regulatory policy (proposed herein), while allowing carriers to utilize
their existing accounting systems in the reimbursement process.
Pursuant to the goal of imposing the least burden on carriers while
also fulfilling the obligation to adhere to Government fiscal
accountability requirements, the proposed regulations specify reporting
objectives rather than specifying the manner in which these records
must be kept. The FBI estimates that approximately three thousand
(3,000) telecommunications carriers may be affected by these rules.
While most carriers are not large in terms of capitalization, most are
dominant within their markets, so they are not considered ``small'' for
the purposes of the Regulatory Flexibility Act. Although it is not
anticipated that any small carriers will be adversely affected, these
proposed rules have been written to allow any such carriers to seek
reimbursement in an equitable manner. Therefore, these regulations seek
to allow these carriers to use their current recordkeeping procedures,
along with the existing skill levels on their staffs. As mandated by
section 603(c) of the Regulatory Flexibility Act, consideration was
given to alternative forms of compliance requirements for the small
entities affected by these proposed rules. However, the FBI determined
that these alternatives were not viable in that they would require the
carriers to alter their internal accounting methodologies, would not
take into account carrier individuality with respect to directly
allocable costs or would violate CALEA's mandate to reimburse carriers'
reasonable costs, while maintaining Government fiscal accountability
requirements. This Proposed Rule solicits comments on both the proposed
regulations and their possible impact on small entities. The FBI will
send a copy of these proposed rules, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with section 603(a) of the Regulatory Flexibility Act, Public Law 96-
354, 94 Stat. 1164, 5 U.S.C. 601 et seq. There are no federal rules
that overlap, duplicate or conflict with these rules.
Executive Order 12612
These regulations will not have substantial direct effects on the
States, on the relationship between the national Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12866
The FBI has examined these proposed regulations in light of
Executive Order 12866 and has found that they constitute a significant
regulatory action under sections 3(f)(1) and 3(f)(4). Pursuant to
Executive Order 12866, 28 CFR part 100 is the draft text of the
regulatory actions that are required under CALEA. These proposed
regulations promulgate procedures whereby carriers may seek
reimbursement for their efforts to assist law enforcement in preserving
electronic surveillance capabilities as mandated by CALEA, which
authorizes appropriations of $500 million for carrier reimbursement.
These regulations have been developed in order to effect the least
burden on the administrative staffs of both the carriers and the
Government while maintaining the Government's obligation to adhere to
its fiscal accountability requirements. In order to accomplish this
goal, the proposed regulations specify reporting objectives rather than
specifying the manner in which these records must be kept. As mandated
by Executive Order 12866, consideration was given to potentially
effective and feasible alternatives to the proposed regulations.
However, the FBI determined that alternative requirements were not
viable in that they would require the carriers to alter their internal
accounting methodologies, would not take into account carrier
individuaity with respect to directly allocable costs and violate
CALEA's mandate to maintain Government fiscal accountability standards
in the reimbursement process.
Unfunded Mandates Reform Act of 1995
As required by Title II of the Unfunded Mandates Reform Act of
1995, this section assesses the effects of
[[Page 21399]]
the proposed regulations on State, local and tribal governments and the
private sector. These regulations are required under section 109(e) of
CALEA. No unfunded mandate is imposed upon State, and local or tribal
governments by these regulations. Therefore, sections 203 and 204 of
the Unfunded Mandates Reform Act do not apply to these proposed rules.
However, the FBI has determined that these proposed rules are subject
to sections 201, 202, and 205 of the Unfunded Mandates Reform Act.
While the telecommunications industry is primarily affected by these
proposed rules, all reasonable costs, as shall be defined in 28 CFR
part 100, incurred by the private sector will be subject to
reimbursement from the $500 million authorized to be appropriated by
Congress under CALEA section 110. Furthermore, CALEA sections 109 and
104 specifically establish the conditions whereby a telecommunications
carrier may be deemed in compliance with regard to the equipment,
facilities or services covered in these proposed regulations should the
Government not agree to reimburse the carrier for the compliance
effort. Accurate estimates of the effects on the national economy of
this part, which is proposed so that carriers may seek reimbursement
for their efforts to assist law enforcement in preserving electronic
surveillance capabilities as mandated by CALEA, are not feasible. As
mandated by section 205 of the Unfunded Mandates Reform Act,
consideration was given to potentially effective and feasible
alternates to the proposed rules. However, the FBI determined that
alternative requirements were not viable in that they would require the
carriers to alter their internal accounting methodologies, would not
take into account carrier individuality with respect to directly
allocable costs and violated CALEA's mandate to maintain Government
fiscal accountability standards in the reimbursement process.
Information Collection Under Review
The proposed information collection is published to obtain comments
from the public and affected agencies. Comments are encouraged and will
be accepted for sixty days from the date listed at the top of this page
in the Federal Register. This process is conducted in accordance with
the Paperwork Reduction Act of 1995.
This collection covers:
(1) Type of Information Collection: NEW COLLECTION: Quantitative
and qualitative data necessary to evaluate cooperative agreement
proposals and subsequent requests for reimbursement.
(2) The title of the information collection: ``Telecommunications
Carrier Reimbursement Cost Estimate'' and ``Telecommunications Carrier
Reimbursement Request for Payment.''
(3) The agency form number, if any, and the applicable component of
the Department sponsoring the collections: No form number; sponsored by
the FBI, United States Department of Justice.
(4) Who will be asked or required to respond, as well as a brief
abstract; BUSINESS OR OTHER FOR PROFIT: Telecommunications carriers
will respond. This data collection will be necessary to evaluate
cooperative agreement proposals and subsequent requests for
reimbursement under CALEA. This information will be used to determine
whether agreement prices are fair and reasonable and to make
recommendations to agreement officers for approval or disapproval of
the carrier's request.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The FBI
estimates that approximately three thousand (3,000) telecommunications
carriers, with approximately twenty-three thousand (23,000) unique
switches, that, over a five (5) year period, may be affected by these
rules. The time required to read and prepare information for one switch
is estimated at four (4) hours per response.
By publication of this notice, written comments and suggestions
from the public and affected agencies concerning the proposed
collection of information was requested. Your comments should address
one or more of the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of
the proposed collection of information, including the validity of
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical or other technological collection techniques or
other forms of information technology (i.g., permitting electronic
submission of responses).
Comments or suggestions regarding the items contained in this
information collections request should be directed to Mr. Porter F.
Dunn, Telecommunications Contracts and Audit Unit, Federal Bureau of
Investigation, P.O. Box 221286, Chantilly, VA 22022-1286, telephone
number (703) 814-4902.
List of Subjects in 28 CFR Part 100
Accounting, Law enforcement--wiretapping and electronic
surveillance, Reporting and recordkeeping requirements,
Telecommunications.
Dated: May 6, 1996.
Louis Freeh,
Director, Federal Bureau of Investigation, Department of Justice.
For the reasons set out in the preamble, 28 CFR part 100 is
proposed to be added as follows:
PART 100--COST RECOVERY REGULATIONS, COMMUNICATIONS ASSISTANCE FOR
LAW ENFORCEMENT ACT OF 1994
Sec.
100.9 General.
100.10 Definitions.
100.11 Allowable costs.
100.12 Reasonable costs.
100.13 Directly assignable costs.
100.14 Directly allocable costs.
100.15 Disallowed costs.
100.16 Cost estimate submission.
100.17 Request for payment.
100.18 Audit.
100.19 Reduction for defective cost data.
100.20 Accounting for unallowable costs.
100.21 Confidentiality of trade secrets/proprietary information.
Authority: 47 U.S.C. 1001-1010; 28 CFR 0.85(o).
Sec. 100.9 General.
These Cost Recovery Regulations were developed to define allowable
costs and establish reimbursement procedures in accordance with section
109(e) of Communications Assistance for Law Enforcement Act (CALEA)
(Public Law 103-414, 47 U.S.C. 1001-1010). Reimbursement of costs is
subject to the availability of funds and agreement, prior to the
incurrence of costs, by the Attorney General or designee to reimburse
costs.
Sec. 100.10 Definitions.
(a) Allocable means chargeable to two or more costs objectives.
(b) Business unit means any segment of an organization for which
cost data are routinely accumulated by the carrier for tracking and
measurement purposes.
(c) Cost objective means a function, organizational subdivision,
contract, or other work unit for which cost data are desired and for
which provision is made to accumulate and measure the cost of
processes, products, jobs, capitalization projects, etc.
[[Page 21400]]
(d) Cost pool means groupings of incurred costs identified with two
or more cost objectives, but not identified specifically with any final
cost objective.
(e) Directly allocable costs means any costs that are directly
chargeable to two or more cost objectives.
(f) Directly assignable cost means any cost that can wholly be
attributed to a cost objective.
(g) Directly associated cost means any directly assignable cost or
directly allocable cost which is generated solely as a result of
incurring another cost, and which would not have been incurred had the
said cost not been incurred.
(h) Final cost objective means a cost objective that has allocated
to it, both assignable and allocable costs and, in the carrier's
accumulation system, is one of the final accumulation points.
(i) Installed or deployed means that, on a specific switching
system, equipment, facilities, or services are operable and available
for use by the carrier's customers.
(j) Plant nonspecific costs means costs related to property held
for future telecommunications use, along with the associated
provisioning expenses, network operations expenses, and depreciation
and amortization expenses. These costs shall also include the costs of
supervising and office support of these activities.
(k) Plant specific costs means costs related to specific kinds of
telecommunications plants. These costs shall include the costs of
inspecting, testing and reporting on the condition of
telecommunications plant to determine the need for repairs,
replacements, rearranges and changes; performing routine work to
prevent trouble except replacing items of plant other than retirement
units; rearranging and changing the location of plant not retired;
repairing material for reuse; restoring the condition of plant damaged
by storms, floods, fire, or other casualties (other than the cost of
replacing retirement units); inspecting after repairs have been made;
and receiving training to perform these kinds of work. Also included
are the costs of direct supervision (immediate or first-level) and
office support of this work.
(l) Trade secrets/proprietary information means information which
is in the possession of a carrier but not generally available to the
public, which that carrier desires to protect against unrestricted
disclosure or competitive use, and which is clearly identified as such
at the time of its disclosure to the government.
Sec. 100.11 Allowable costs.
(a) Costs that are eligible for reimbursement under section 109(e)
CALEA are:
(1) All reasonable plant specific costs directly associated with
the modifications performed by carriers in connection with equipment,
facilities, and services installed or deployed on or before January 1,
1995, to establish the capabilities necessary to comply with section
103 of CALEA, until the equipment, facility, or service is replaced or
significantly upgraded or otherwise undergoes major modifications;
(2) Additional reasonable plant specific costs directly associated
with making the assistance capability requirements found in section 103
of CALEA reasonably achievable with respect to equipment, facilities,
or services installed or deployed after January 1, 1995, in accordance
with the procedures established in CALEA section 109(b); and
(3) Reasonable plant specific costs directly associated with
modifications to any of a carrier's systems or services, as identified
in the Carrier Statement required by CALEA section 104(d), that do not
have the capacity to accommodate simultaneously the number of
interceptions, pen registers, and trap and trace devices set forth in
the Capacity Notice(s) published in accordance with CALEA section 104.
(b) Allowable plant specific costs shall include:
(1) The costs of installation, inspection, and testing of the
telecommunications plant, and inspection after modifications have been
made; and
(2) The costs of direct first-line supervision and office support
for this work for plant specific expenses.
(c) In the case of any modification that may be used for any
purpose other than lawfully authorized electronic surveillance by a
government law enforcement agency, this part permits recovery of only
the incremental cost of making the modification suitable for such law
enforcement purposes.
(d) Reasonable costs that are directly associated with the
modifications performed by a carrier as described in Sec. 100.11(a) are
recoverable. These allowable costs are limited to direct and directly
allocable costs incurred by the business units whose efforts are
expended on the implementation of CALEA requirements.
Sec. 100.12 Reasonable costs.
(a) A cost is reasonable if, in its nature and amount, it does not
exceed that which would be incurred by a prudent person in the conduct
of competitive business. Reasonableness of specific costs must be
examined with particular care in connection with the carrier or its
separate divisions that may not be subject to effective competitive
restraints.
(1) No presumption of reasonableness shall be attached to the
incurrence of costs by a carrier.
(2) The burden of proof shall be upon the carrier to justify that
such cost is reasonable under this part.
(b) Reasonableness depends upon considerations and circumstances,
including, but not limited to:
(1) Whether a cost is of the type generally recognized as ordinary
and necessary for the conduct of the carrier's business or the
performance of this obligation; or
(2) Whether it is a generally accepted sound business practice,
arm's-length bargaining or the result of Federal or State laws and/or
regulations.
(c) It is the carrier's responsibility to inform the Government of
any deviation from the carrier's established practices.
Sec. 100.13 Directly assignable costs.
(a) An allowable directly assignable cost is any plant specific
cost that can be definitively linked with the performance of bringing
equipment, facilities or services into compliance with CALEA as
described in Sec. 100.11(a).
(1) A direct cost which has been incurred for the same purpose in
like circumstances and which has been included in any allocable cost
pool to be assigned to that or any other final cost objective shall not
be assigned to the CALEA compliance effort (or any portion thereof).
(2) Costs identified specifically with the work performed are
direct costs to be charged directly to the CALEA compliance effort. All
costs specifically identified with other projects, business units, or
cost objectives of the carrier as direct costs shall not be charged to
the CALEA compliance effort, directly or indirectly.
(3) The burden of proof shall be upon the carrier to justify that
such cost is a direct cost under this part.
(b) For reasons of practicality, any directly assignable cost of
minor dollar amount may be treated as a directly allocable cost if the
accounting treatment is consistently applied within the carrier's
accounting system and the application produces substantially the same
results as treating the cost as a directly assignable cost.
Sec. 100.14 Directly allocable costs.
(a) A cost is directly allocable to the CALEA compliance effort if:
[[Page 21401]]
(1) It is plant specific cost incurred specifically to meet the
requirements of CALEA sections 103 and 104; or
(2) It benefits both the CALEA compliance effort and other work,
and can be distributed to them in reasonable proportion to the benefits
received.
(b) The burden of proof shall be upon the carrier to justify that
such cost is an allocable cost under this part.
(c) An allocable cost shall not be assigned to the CALEA compliance
effort if other costs incurred for the same purpose in like
circumstances have been included as a direct cost of that, or any
other, cost objective.
(d) The accumulation of allocable costs shall be as follows:
(1) Allocable costs shall be accumulated by logical groupings with
due consideration of the reason for incurring such costs.
(i) Each grouping should be determined so as to permit distribution
of the grouping on the basis of the benefits accruing to the multiple
cost objectives.
(ii) Similarly, the particular case may require subdivision of
these groupings (e.g., building occupancy costs might be separable from
those of personnel administration within the engineering group).
(2) Such allocation necessitates selecting a distribution base
common to all cost objectives to which the grouping is to be allocated.
The base should be selected so as to permit allocation of the grouging
on the basis of the benefits accruing to the multiple objectives.
(3) When substantially the same results can be achieved through
less precise methods, the number and composition of cost groupings
should be governed by practical considerations and should not unduly
complicate the allocation.
(4) Once a methodology for determining an appropriate base for
distributing allocable costs has been accepted by the FBI, it shall not
be modified without written approval of the FBI. All items properly
includable in an allocable cost base should bear a pro rata share of
allocable costs irrespective of their acceptance as reimbursable under
this part.
(5) The carrier's method of allocating allocable costs shall be in
accordance with the accounting principles used by the carrier in the
preparation of their externally audited financial statements and
consistently applied, to the extent that the expenses are allowable
under these regulations. The method may require further examination
when:
(i) Substantial differences occur between the cost patterns of work
under CALERA compliance effort and the carrier's other work;
(ii) Significant changes occur in the nature of the business, the
extent of subcontracting, fixed-asset improvement programs,
inventories, the volume of sales and production, manufacturing
processes, the carrier's products, or other relevant circumstances; or
(iii) Allocable cost groupings developed for a carrier's primary
location are applied to off-site locations. Separate cost groupings for
costs allocable to off-site location may be necessary to permit
equitable distribution of costs on the basis of the benefits accruing
to the multiple cost objectives.
(6) The base period for allocating allocable costs is the cost
accounting period during which such costs are incurred and accumulated
for distribution to work performed in that period. The base period for
allocating allocable costs will normally be the carrier's fiscal year.
A shorter period may be appropriated when performance involves only a
minor portion of the fiscal year, or when it is general practice to use
a shorter period. When the compliance effort is performed over an
extended period, as many base periods shall be used as are required to
accurately represent the period of performance.
Sec. 100.15 Disallowed costs.
(a) General and Administrative (G&A) costs are disallowed. G&A
costs include, but are not limited to, any management, financial, and
other expenditures which are incurred by or allocated to a business
unit and which are for the general management and administration of the
business unit as a whole. These include, but are not limited to:
(1) Accounting and Finance, External Relations, Human Resources,
Information Management, Legal, Procurement; and
(2) Other general administrative activities such as library
services, food services, archives, and general security investigation
services.
(b) Customer Service costs are disallowed. These costs include, but
are not limited to, any Marketing, Sales, Product Management, and
Advertising expenses.
(c) Plant nonspecific costs are disallowed. These include, but are
not limited to, expenses related to property held for future
telecommunications use, provisioning expenses, network operations
expenses, and depreciation and amortization expenses. Any plant
nonspecific supervision and office support costs are also disallowed.
(d) Cost that have already been recovered from any governmental or
nongovernmental entity are disallowed.
(e) Costs that cannot be either directly assigned or directly
allocated are disallowed.
(f) Additional costs that are incurred due to the carrier's failure
to complete the CALEA compliance effort in the agreed upon time frame
are disallowed.
(g) Costs associated with modifications of any equipment, facility
or service installed or deployed after January 1, 1995 which are deemed
reasonably achievable by the Federal Communications Commission under
section 109(b) of CALEA are disallowed.
Sec. 100.16 Cost estimate submission.
(a) The carrier shall provide sufficient cost data at the time of
proposal submission to allow adequate analysis and evaluation of the
estimated costs. The FBI reserves the right to request additional cost
data from carriers in order to ensure compliance with this part.
(b) The requirement for submission of cost data is met if, as
determined by the FBI, all cost data reasonably available to the
carrier are either submitted or identified in writing by the time of
agreement.
(c) If cost data and information to explain the estimating process
are required by the FBI and the carrier refuses to provide necessary
data, or the FBI determines that the data provided are so deficient as
to preclude adequate analysis and evaluation, the FBI will attempt to
secure the data and/or elicit corrective action. If the carrier
persists in refusing to provide the needed data or to take corrective
action, the FBI will refer the action to higher authority, including
details of the attempts made to resolve the matter, and a statement of
noncompliance with CALEA will be issued.
(d) Instructions for submission of the cost data for the estimate
are as follows:
(1) The carrier shall submit to the FBI estimated and/or incurred
costs by line item with supporting information, adequately cross-
referenced, suitable for detailed analysis.
(2) A cost element breakdown as described in Sec. 100.16(h) shall
be attached for each proposed line item and must reflect any specific
requirements established by the FBI.
(3) Supporting breakdowns shall be furnished for each cost element,
consistent with the carrier's cost accounting system.
(4) When more than one line item is proposed, summary total amounts
covering all line items shall be furnished for each cost element.
[[Page 21402]]
(5) Depending on the carrier's accounting system, the carrier shall
provide breakdownS for the following categories of cost elements, as
applicable:
(i) Materials. Provide a consolidated cost summary of individual
material quantities included in the various tasks, orders, or agreement
line items being proposed and the basis upon which they were developed
(vendor quotes, invoice prices, etc.). Include raw materials, parts,
software, components, and assemblies. For all items proposed, identify
the item, source, quantity, and cost.
(ii) Direct labor. Provide a time-phased (e.g., monthly, quarterly)
breakdown of labor hours, rates, and costs by appropriate category, and
furnish the methodologies used in developing estimates.
(iii) Allocable direct costs. Indicate how allocable costs are
computed and applied, including cost breakdowns, and showing trends and
budgetary data, to provide a basis for evaluating the reasonableness of
proposed rates. Indicate the rates used and provide an appropriate
explanation.
(iv) Subcontracting costs. For any subcontractor costs submitted
for reimbursement, the carrier is responsible for ensuring that
documentation requirements set forth herein are passed on to any and
all subcontractors utilized in the carrier's efforts to meet CALEA
requirements.
(v) Other costs. List all other costs not otherwise included in the
categories described above (e.g., special tooling, travel, computer and
consultant services) and provide bases for costs.
(e) As part of the specific information required, the carrier shall
submit with its cost estimate and clearly identify as such, costs that
are verifiable and factual. In addition, the carrier shall submit
information reasonably required to explain its estimating process,
including:
(1) The judgmental factors applied and the mathematical or other
methods used in the estimate, including those used in projecting from
known data; and
(2) The nature and amount of any contingencies included in the
proposed estimate.
(f) There is a clear distinction between submitting cost data and
merely making available books, records, and other documents without
identification. The requirement for submission of cost data is met when
all accurate cost data reasonably available to the carrier have been
submitted, either actually or by specific identification, to the FBI.
As later information comes into the carrier's possession, it must be
promptly submitted to the FBI. The requirement for submission of cost
data continues up to the time of final reimbursement.
(g) In submitting its estimate, the carrier must include an index,
appropriately referenced, of all the cost data and information
accompanying or identified in the estimated. In addition, any future
additions and/or revisions, up to the date of agreement on the costs,
must be annotated in a supplemental index.
(h) Headings for submission are as follows:
(1) Total Project Cost: Summary.
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Proposed Cost Estimate--Total Cost (enter those necessary and
reasonable costs that in the carrier's judgment will properly be
incurred in efficient completion of CALEA requirements. When any of the
costs in this have already been incurred (e.g., under a letter
contract), describe them on an attached support schedule.).
(iii) Proposed Cost Estimate--Unit Cost (Enter the unit costs for
each cost element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
(2) Total Project Costs: Detail (at Switch Level, Research &
Development, or Project level, as appropriate).
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Proposed Cost Estimate--Total Cost (enter those necessary and
reasonable costs that in the carrier's judgment will properly be
incurred in efficient completion of CALEA requirements. When any of the
costs in this have already been incurred (e.g., under a letter
contract), describe them on an attached supporting schedule.).
(iii) Proposed Cost Estimate--Unit Cost (Enter the unit costs for
each element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
Sec. 100.17 Request for payment.
(a) The carrier shall provide sufficient supporting documentation
at the time of submission of request for payment to allow adequate
analysis and evaluation of the incurred costs. The FBI reserves the
right to request additional cost data from carriers in order to ensure
compliance with this part.
(b) Instructions for submission of the supporting documentation for
the request for payment are as follows:
(1) The carrier shall submit to the FBI incurred costs by line item
with supporting information, adequately cross-referenced, suitable for
detailed analysis.
(2) A cost element breakdown Sec. 100.17(f) shall be attached for
each agreed upon line item and must reflect any specific requirements
established by the FBI.
(3) Supporting breakdowns shall be furnished for each cost element,
consistent with the carrier's cost accounting system.
(c) When more than one line item has been agreed upon, summary
total amounts covering all line items shall be furnished for each cost
element. If agreement has been reached with FBI representatives on use
of forward costing rates/factors, identify the agreement, include a
copy, and describe its nature. Depending on the carrier's accounting
system, breakdowns shall be provided to the FBI for the following
categories of cost elements, as applicable:
(1) Materials. Provide a consolidated cost summary of individual
material quantities included in the various tasks, orders, or agreement
line items and the basis upon which they were determined (vendor
invoices, time sheets, payroll records, etc.). Include raw materials,
parts, software, components, and assemblies. For all reimbursable
items, identify the item, source, quantity, and cost.
(2) Direct labor. Provide time sheets and labor rate justification
for all direct labor charged to this agreement. Include a breakdown of
labor hours, rates, and cost by appropriate category, and furnish the
methodologies used in identifying these costs.
(3) Allocable direct costs. Indicate how allocable costs are
computed and applied, including cost breakdowns, comparing estimates to
actual data as a basis for evaluating the reasonableness of actual
costs.
(4) Subcontracting costs. For any subcontractor costs submitted for
reimbursement, along with a copy of the invoice, the carrier must
provide documentation that costs incurred are just and reasonable.
(5) Other costs. List all other costs not otherwise included in the
categories described above (e.g., special tooling, travel, computer and
consultant services) and provide documentation of these costs.
(d) There is a clear distinction between submitting cost data and
merely making available books, records, and other documents without
identification.
[[Page 21403]]
(1) The requirement for submission of cost data is met when all
accurate cost data reasonably available to the carrier have been
submitted, either actually or by specific identification, to the FBI.
(2) As later information comes into the carrier's possession, it
must be promptly submitted to the FBI.
(3) The requirement for submission of cost data continues up to the
time of final reimbursement.
(e) In submitting its invoice, the carrier must include an index,
appropriately referenced, of all the cost data and information
accompanying or identified in the estimate. With any future additions
and/or revisions to an estimate, the carrier must provide a
supplemental index, up to the date of the agreement on the costs.
(f) Headings for submission are as follows:
(1) Total Project Cost: Summary.
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Actual Costs Incurred--Total Cost (Enter those necessary and
reasonable costs that were incurred in the efficient completion of
CALEA requirements.).
(iii) Actual Costs Incurred--Unit Cost (Enter the unit costs for
each cost element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
(2) Total Project Costs: Detail (at Switch Level, Research &
Development, or Project level, as appropriate).
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Actual Costs Incurred--Total Cost (Enter those necessary and
reasonable costs that were incurred in the efficient completion of
CALEA requirements.).
(iii) Actual Costs Incurred--Unit Cost (Enter the unit costs for
each cost element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
Sec. 100.18 Audit.
(a) General. In order to evaluate the accuracy, completeness, and
currency of the cost data, the FBI or other representatives of the
Government shall have the right to examine and audit all of the
carrier's supporting materials.
(1) These materials include, but are not limited to books, records,
documents, and other data, regardless of form (e.g., machine readable
media such as disk, tape) or type (e.g., data bases, applications
software, data base management software, utilities), including
computations and projections related to proposing, negotiating,
costing, or performing CALEA compliance efforts or modifications.
(2) The right of examination shall extend to all documents
necessary to permit adequate evaluation of the cost data submitted,
along with the computations and projections used.
(b) Audits of request for payment. The carrier shall maintain and
the FBI or representatives of the Government shall have the right to
examine and audit supporting materials.
(1) These materials include, but are not limited to, books,
records, documents, and other evidence and accounting procedures and
practices, regardless of form (e.g., machine readable media such as
disk, tape) or type (e.g., data bases, applications software, data
based management software, utilities), sufficient to reflect properly
all costs claimed to have been incurred, or anticipated to be incurred,
in performing the CALEA compliance effort.
(2) This right of examination shall include inspection at all
reasonable times of the carrier's plants, or parts of them, engaged in
performing the effort.
(c) Reports. If the carrier is required to furnish cost, funding,
or performance reports, the FBI or representatives of the Government
shall have the right to examine and audit books, records, other
documents, and supporting materials, for the purpose of evaluating the
effectiveness of the carrier's policies and procedures to produce data
compatible with the objectives of these reports and the data reported.
(d) Availability. The carrier shall make available at its office at
all reasonable times the costs and support material described herein,
for examination, audit, or reproduction, until five (5) years after
final reimbursement payment. In addition,
(1) If the CALEA compliance effort is completely or partially
terminated, the records relating to the work terminated shall be made
available for five (5) years after any resulting final termination
settlement; and
(2) Records relating to appeals, litigation or the settlement of
claims arising under or relating to the CALEA compliance effort shall
be made available until such appeals, litigation, or claims are
disposed of.
(e) Subcontractors. The carrier shall ensure that all terms and
conditions herein are incorporated in any agreement with a
subcontractor that may be utilized by the carrier to perform any or all
portions of this agreement.
Sec. 100.19 Reduction for defective cost data.
(a) The cost shall be reduced accordingly and the agreement shall
be modified to reflect the reduction if any cost estimate negotiated in
connection with the CALEA compliance effort, or any cost reimbursable
under the effort, or any data modification is increased by any
significant amount because:
(1) The carrier or a subcontractor furnished cost data that were
not complete, accurate, and current;
(2) A subcontractor or prospective subcontractor furnished the
carrier cost data that were not complete, accurate, and current; or
(3) Any of these parties furnished data of any description that
were not accurate.
(b) Any reduction in the negotiated cost under Sec. 100.19(a) due
to defective data from a prospective subcontractor that was not
subsequently awarded the subcontract shall be limited to the amount by
which either the actual subcontract or the actual cost to the carrier,
if there was no subcontract, was less than the prospective subcontract
cost estimate submitted by the carrier, provided that the actual
subcontract cost was not itself affected by defective cost data.
(c) If the FBI determines under Sec. 100.19(a) that a cost
reduction should be made, the carrier shall not raise the following
matters as a defense:
(1) The carrier or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the costs of
the agreement would not have been modified even if accurate, complete,
and current cost data had been submitted;
(2) The FBI should have known that the cost data at issue were
defective even though the carrier or subcontractor took no affirmative
action to bring the character of the data to the attention of the FBI;
(3) The carrier or subcontractor did not submit accurate cost data.
Except as prohibited, an offset in an amount determined appropriate by
the FBI based upon the facts shall be allowed against the cost
reimbursement of an agreement amount reduction if the carrier certifies
to the FBI that, to the best of the carrier's knowledge and belief, the
carrier is entitled to the offset in the amount requested and the
carrier proves that the cost data were available before the date of
agreement on the cost of the agreement (or cost of the modification)
and that the data were not submitted before such date. An offset shall
not be allowed if the understated data were known by the carrier to be
understated when the agreement was signed; or the Government proves
that
[[Page 21404]]
the facts demonstrate that the agreement amount would not have
increased even if the available data had been submitted before the date
of agreement on cost; or
(4) In the event of an overpayment, the carrier shall be liable to
and shall pay the United States at that time such overpayment as was
made, with simple interest on the amount of such overpayment to be
computed from the date(s) of overpayment to the carrier to the date the
Government is repaid by the carrier at the applicable underpayment rate
effective for each quarter prescribed by the Secretary of the Treasury
under 26 U.S.C. 6621(a)(2).
Sec. 100.20 Accounting for unallowable costs.
To ensure that the Government does not reimburse carriers for
unallowable costs, the following provisions are included:
(a) Costs that are expressly unallowable or mutually agreed to be
unallowable, including mutually agreed to be unallowable directly
associated costs, shall be identified and excluded from any billing,
claim, or proposal applicable to reimbursement under CALEA. When an
unallowable cost is incurred, its directly associated costs are also
unallowable.
(b) The detail and depth of records required as backup support for
cost estimates, billings, or claims shall be those which are adequate
to establish and maintain visibility of identified unallowable costs,
including their directly associated costs. Unallowable costs involved
in determining rates used for standard costs, or for allocable cost
proposals or billing, need be identified only at the time rates are
proposed, established, revised, or adjusted. These requirements may be
satisfied by any form of cost identification which is adequate for
purposes of cost determination and verification.
Sec. 100.21 Confidentiality of trade secrets/proprietary information.
With respect to any information provided to the FBI under this part
that is identified as company proprietary information, it shall be
treated as privileged and confidential. It shall not be disclosed
outside the government for any reason inclusive of Freedom of
Information requests, without the prior written approval of the
company. Information provided will be used exclusively for the
implementation of CALEA. This restriction does not limit the
government's right to use the information provided if obtained from any
other source without limitation.
[FR Doc. 96-11724 Filed 5-9-96; 8:45 am]
BILLING CODE 4410-02-M