[Federal Register Volume 73, Number 119 (Thursday, June 19, 2008)]
[Proposed Rules]
[Pages 34905-34913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13819]
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DEPARTMENT OF JUSTICE
28 CFR Part 20
[Docket No. FBI 114]
RIN 1110-AA26
FBI Criminal Justice Information Services Division User Fees
AGENCY: Federal Bureau of Investigation (FBI), Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The FBI is authorized to establish and collect fees for
providing fingerprint-based and name-based Criminal History Record
Information (CHRI) checks and other identification services submitted
by authorized users for noncriminal justice purposes including
employment and licensing. The FBI may set such fees at a level to
include an amount to establish a fund to defray expenses for the
automation of fingerprint identification and criminal justice
information services and associated costs. The proposed rule explains
the methodology used to calculate the revised fees, provides the
proposed fee schedule, and advises that future fee adjustments will be
made by notice published in the Federal Register. After public comment,
a final rule and notice of the final fee schedule will be published
concurrently in the Federal Register.
DATES: Written comments must be received on or before August 18, 2008.
ADDRESSES: You may submit comments, identified by Docket No. FBI 114,
by either of the following methods:
Federal Regulations Web site: You may review this
regulation on http://www.Regulations.gov and use the comment form for
this regulation to submit your comments. You must include Docket No.
FBI 114 in the subject box of your message.
Mail: You may use the U.S. Postal Service or other
commercial delivery services to submit written comments to the FBI
Criminal Justice Information Services Division, 1000 Custer Hollow
Road, Module E-3, Clarksburg, West Virginia 26306, Attention:
Christopher L. Enourato. To ensure proper handling, please reference
Docket No. FBI 114 in your comment. When submitting written comments,
please allow for delivery time plus at least two days for internal mail
security scanning and delivery.
FOR FURTHER INFORMATION CONTACT: Christopher L. Enourato, FBI, Criminal
Justice Information Services Division, 1000 Custer Hollow Road, Module
E-3, Clarksburg, West Virginia 26306, telephone number 304-625-2910.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
II. Background
III. Fee Calculation
IV. Revised Fee Schedule
V. Administrative
VI. Regulatory Certifications
I. Posting of Public Comments
Please note that all comments on the proposed rule are considered
part of the public record and made available for public inspection
online at http://www.Regulations.gov. Such information includes
personal identifying information (such as your name, address, etc.)
voluntarily submitted by the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.Regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the ``For Additional Information'' paragraph.
II. Background
For the purposes of this discussion, the FBI user fees are
classified according to the FBI division that provides the check in
question: the Records Management Division (RMD) or the Criminal Justice
Information Services (CJIS) Division. The proposed rule implements the
FBI's statutory authority to establish and collect fees for noncriminal
justice fingerprint-based and name-based CHRI checks and other
identification services performed by the CJIS Division. Fees for name
checks performed by RMD will be the subject of a separate rulemaking.
Further, under 28 CFR 16.33, the FBI is authorized to collect a fee for
the production of an FBI identification record in response to a written
request by the subject of the record; adjustments to that fee will be
set out in a third rulemaking.
The proposed rule explains the methodology used to calculate the
FBI's revised fees, provides a proposed fee schedule, and advises that
future fee adjustments will be made by notice published in the Federal
Register. After public comment, a final rule and notice of the final
fee schedule will be published concurrently in the Federal Register.
The rule will be published at 28 CFR Part 20.
[[Page 34906]]
Legal Authority To Collect Fees
The FBI has collected user fees for fingerprint-based CHRI checks
since 1982, when the authority to establish and collect fees to process
fingerprint-based CHRI checks for noncriminal justice purposes, such as
employment and licensing, was set out in Public Law (Pub. L.) 97-257.
This statutory authority was renewed annually by subsequent
appropriations legislation. Under Public Law 101-162, the FBI was also
authorized to establish and collect fees for name-based checks and to
set the fees at a level to include an amount to defray expenses for the
automation of fingerprint identification and associated costs.
Congress, in Public Law 101-515, subsequently authorized the FBI to
establish and collect these fees on a continuing basis. This authority
was further expanded by Public Law 104-99 with insertion of the term
``criminal justice information services'' so the FBI was authorized to
use the collected fees to ``defray expenses for the automation of
fingerprint identification and criminal justice information services
and associated costs.'' The same statutory language concerning the
FBI's authority to establish and collect fees for conducting CHRI
checks was included in the Private Security Officer Employment
Authorization Act of 2004, Section 6402 of the Intelligence Reform and
Terrorism Prevention Act of 2004, Public Law 108-458. As explained
later, the National Child Protection Act, as amended by the Volunteers
for Children Act (VCA), Title 42, United States Code (U.S.C.), Section
5119a, provides user fee authority for fingerprint-based CHRI checks of
volunteers who work in qualified entities with children, the elderly,
or disabled persons.
No Fees for Criminal Justice CHRI Checks
Under Public Law 101-515 and other statutes, the FBI is authorized
to charge a fee for noncriminal justice CHRI checks for such purposes
as employment and licensing. The FBI does not charge a fee for
identification services performed for criminal justice purposes,
including checks of applicants for criminal justice employment, which
are financially supported by federal appropriations.
Proposed Changes to the Fee Schedule
The proposed fee schedule reflects changes in both the FBI's
business processes and the volume of noncriminal justice submissions.
In 1982, the average response time was 27 work days to process the
60,000 noncriminal justice checks submitted each month. In 1994 when
the user fees were last adjusted, the FBI's response time to process
333,000 noncriminal justice fingerprint-based CHRI checks in the same
time period was 16 work days. In fiscal year (FY) 2006 with a more
efficient automated identification system in place, the average
response time for 885,000 noncriminal justice fingerprint checks
submitted electronically each month was merely 3 hours and 30 minutes.
When user fees were first implemented in 1982, the authorized user
community received actual notice of fee changes through CJIS
Information Letters (formerly called Contributor Letters). The fees
were adjusted from time-to-time to reflect rising personnel costs and
the increasing volume of noncriminal justice submissions, and the
revised fee information was provided to the authorized user community
through CJIS Information Letters.
Consistent with that past practice, by CJIS Information Letter
dated June 1, 2007, the fee schedule in the proposed rule was
established on an interim basis effective October 1, 2007. Although the
proposed rule will establish the user fees by notice and comment
rulemaking, it was necessary to advise the authorized user community of
the revised fees prior to the start of FY 2008. Setting the revised
fees on an interim basis will allow contributors to make necessary
changes to fee processing and accounting procedures before the start of
the federal fiscal year, thereby avoiding costly and confusing midyear
changes.
The FBI will continue to analyze its costs and will review related
fee charges periodically, as recommended by Office of Management and
Budget Circular No. A-25, User Charges (OMB Circular A-25). The
proposed rule advises that future adjustments to the FBI's fees will be
announced by notice in the Federal Register.
III. Fee Calculation
Standards and Guidelines Used To Calculate the Fees
Public Law 101-515 links the user fees charged for processing
fingerprint identification records and name checks to the cost of
providing these services. This authority also permits the FBI to
establish user fees at a level to include an amount ``to defray
expenses for the automation of fingerprint identification and criminal
justice information services and associated costs.''
In the absence of express statutory authority, federal agencies are
authorized to establish fees by the Independent Offices Appropriation
Act of 1952, 31 U.S.C. 9701, which is implemented by specific
guidelines in OMB Circular A-25. Since the FBI has specific statutory
authority to establish and collect fees under Public Law 101-515, the
FBI is not required to follow strictly the mandates of OMB Circular A-
25. In establishing the fees set out in this proposed rule, the FBI
referred to OMB Circular A-25 for guidance in calculating fees based on
costs. For example, in calculating the fees, OMB Circular A-25's
definition of full cost ``as all direct and indirect costs to any part
of the Federal Government of providing a good, resource, or service''
was used to include direct and indirect personnel costs, physical
overhead, and other indirect costs such as material costs, utilities,
travel, and equipment.
Congress in the VCA, 42 U.S.C. 5119a, limited the fee that can be
charged to a volunteer to $18, or the actual cost of providing the
service, whichever is less. The statutory term ``actual cost'' does not
appear in OMB Circular A-25, which uses the term full cost, defined as
all direct and indirect costs of providing a service. Thus, the FBI
defined the actual cost as the full cost of providing this service,
when calculating the fee for checks of volunteers under the VCA.
Methodology Used To Calculate the User Fees
The FBI hired a contractor, BearingPoint, Inc., 1676 International
Drive, McLean, Virginia 22102 (BearingPoint), to conduct an independent
analysis of pertinent costs and to recommend a revised fee schedule for
the fingerprint-based and name-based CHRI checks conducted by the CJIS
Division. Referencing OMB Circular A-25; the Statement of Federal
Financial Accounting Standards (SFFAS-4): Managerial Cost Accounting
Concepts and Standards for the Federal Government; and other relevant
financial management directives, BearingPoint developed a cost
accounting methodology and related cost models based upon the concepts
and principles of activity-based costing (ABC).
ABC is a business management process that provides information
about the relationships between inputs (costs) and outputs (products or
services) by quantifying how work is performed (activities). The ABC
model used to calculate the user fees was developed using commercially
available ABC software and followed generally accepted cost accounting
procedures for cost assignment and unit cost calculation.
Organizational resources were assigned to activities, and then the
[[Page 34907]]
activities were assigned to services based upon reported patterns of
consumption. BearingPoint identified the total resources associated
with the fingerprint-based and name-based CHRI check services and
assigned these costs to the services using relevant cost drivers. The
cost drivers were selected primarily for their strong cause-effect
linkages between the resources and the activities and services that
consumed them. BearingPoint worked extensively with FBI staff,
including programmatic subject matter experts and statistical experts,
to gather the information necessary to devise the cost accounting
methodology and to construct a representative ABC model. BearingPoint
developed its cost accounting methodology in six steps for the
nonautomation portion of the fee.
1. Operational labor costs were reviewed and assigned to activities
and then to services.
2. Support labor costs were reviewed and assigned to activities and
then to services.
3. Nonlabor costs, including unfunded personnel and judgment fund
costs, were reviewed and assigned to activities and then to services.
4. Cost estimates were made for FY 2008, when the revised user fees
are expected to be implemented.
5. Transaction volumes and trends were analyzed to predict
appropriate transaction volumes for FY 2008.
6. Finally, using the projected FY 2008 costs and the projected FY
2008 transaction volumes, the projected unit costs for each service
were calculated. The recommended user fees were based on these
projected unit costs.
As explained above, under Public Law 101-515, the FBI is also
authorized to charge an additional amount for the automation of
fingerprint identification and criminal justice information services
and associated costs. A similar process was used to develop this
portion of the fee. It was determined that the most appropriate basis
for the calculation of this portion of the fee was the capital
investment and anticipated depreciation costs for automated fingerprint
identification and other criminal justice information service
capabilities and enhancements to certain automated systems. The costs
for these automation efforts were obtained from the FBI's asset
management and financial management systems and records, and program
planning documentation. By employing this methodology, users paying the
fee will pay for services based on the cost of the automation which is
already in place at the time their request is processed. While the
funds collected will be used to develop future capabilities, the cost
basis of the fee will be the automation in place. The projected FY 2008
volumes were then used to calculate the unit costs for this portion of
the fee.
Once the unit costs were calculated, BearingPoint generated the
revised fee schedule. The FBI then independently reviewed the
BearingPoint recommendations, compared them to current fee calculations
and plans for future services, and determined that the revised
schedules were both objectively reasonable and in consonance with the
underlying legal authorities.
Overview of the Costs Included in the Fee Calculation
The fee calculation was made by gathering the labor and nonlabor
costs of those divisions of the FBI that directly or indirectly support
the provision of the fingerprint-based and name-based CHRI check
services, and then using various drivers to assign those costs to the
identified activities. The activities were then assigned to the
specific fingerprint-based and name-based CHRI check services or to a
general category for all other costs. The ABC model examined in detail
only those costs which were related to the fingerprint-based and name-
based CHRI check services. These services included both the criminal
justice and law enforcement and the noncriminal justice identification
services performed by the CJIS Division of the FBI. The discussion
below is limited to those costs in the ABC model which were assigned to
the fingerprint-based and name-based CHRI check services that are
supported by the user fees. In other words, even though the ABC model
calculated unit costs for various criminal justice fingerprint-based
CHRI check services, these costs will not be discussed in this
regulation since they are funded with appropriations and not with user
fees.
The costs for providing the fee-supported fingerprint-based and
name-based CHRI check services include the personnel costs for both
direct and indirect support, as well as nonlabor costs such as travel,
training, rent, equipment, utilities, printing, contract support, and
supplies. In addition, depreciation for existing nonautomation assets
was included per OMB Circular A-25 guidance. Finally, portions of the
FBI's costs for workers compensation, unemployment compensation, and
the judgment fund, used to pay judgments against the United States
where appropriations have not otherwise been provided, were included.
These costs were derived from the FBI's financial systems and audited
financial statements. The FY 2008 predicted costs were obtained by
recalculating the depreciation and adding an inflation factor for labor
and other nonlabor expenses. The OMB pay raise and inflation factors
provided in OMB Circular A-11, Preparation, Submission, and Execution
of an Agency Budget, were used. The costs associated with providing the
services do not include any of the automation costs which instead were
captured in the capital investment and depreciation costs for the
automation portion of the fee described below.
The automation costs are divided into those which support
fingerprint identification services currently in operation and those
which support other criminal justice information services. Both types
of automation costs are authorized by Public Law 101-515. The FBI chose
to separate these costs to facilitate calculation of the cost of
providing fingerprint-based CHRI checks for volunteers, since the VCA
limits the fee to the actual cost or $18.00, whichever is less. The FBI
is interpreting the actual cost of providing the service to include
only the costs for the automation of fingerprint services currently in
operation; the actual cost does not include the costs for the
automation of other criminal justice information services.
The costs for the automation of the fingerprint identification
services include depreciation costs for the fingerprint identification
infrastructure and the costs for developing a disaster recovery
capability which would allow the FBI's essential fingerprint
identification services to continue in all circumstances as required by
OMB Circular A-130, Management of Federal Information Resources (OMB
Circular A-130).
The costs for the automation of other criminal justice information
services are based on the depreciation of assets already in place and
the costs of enhancements which have passed through the approval gates
for the planning stages of system development under the FBI's life
cycle management directive. These enhancements include the Next
Generation Identification program, which will increase the speed,
capacity, and functionality of the FBI's fingerprint identification
process, and the Biometric Interoperability Program which will provide
two-way access to information in other major fingerprint databases such
as the Department of Homeland Security's database of nonimmigrant
visitors to the United States. The costs also include the automation of
certain aspects of the National Crime Information Center (NCIC), the
Law Enforcement National
[[Page 34908]]
Data Exchange (N-DEx) program, and the Uniform Crime Reporting (UCR)
program.
There is one additional component of cost which was considered when
determining the fees. Federal agencies, certain state agencies, and
approved nongovernmental entities that submit fingerprint-based CHRI
checks function as de facto centralized billing service providers
(CBSPs) by collecting the appropriate fee from individuals or
subordinate agencies and submitting a consolidated payment. It is more
cost-effective for the FBI to bill a CBSP than to process individual
direct payments for single fingerprint-based CHRI check submissions.
The FBI employs this centralized billing methodology to collect payment
for more than 9.8 million fingerprint-based CHRI checks each year.
Under the fee schedule proposed in this rule, the FBI will continue the
practice of allowing approved CBSPs to retain a portion (currently
$2.00) of the fee for fingerprint-based CHRI checks for performing this
centralized billing service. In order to allow the CBSPs to retain this
portion of the fee, it is necessary to include this cost when
determining the full costs which the fee must cover. At this time, this
cost is calculated by multiplying the amount the CBSPs are allowed to
retain by the volume of billed transactions. The centralized billing
process will be subject to further analysis and, consequently, may be
revised in the future.
Proposed Changes to the Fee Schedule
Fingerprint-Based CHRI Checks
The FBI utilizes categories or fee classes to set the charges for
fingerprint-based CHRI checks.
Current fee classes are determined by the:
Type of submission--manual or electronic.
Source of funding--federally appropriated or other
funding.
Volunteer status under the VCA.
Proposed fee classes will be determined by the:
Type of transaction--manual, electronic, or electronic
submission with manual response.
Volunteer status under the VCA.
Note that under the proposed rule, there is no distinction in fees
based on the source of funding.
Name-Based CHRI Checks
As noted earlier, the RMD and the CJIS Division of the FBI both
provide name-based checks of FBI maintained records. The CJIS Division
name-based CHRI checks provide CHRI from records of individuals
fingerprinted as a result of arrest or incarceration. The FBI
maintained records have been submitted voluntarily by state, local,
tribal and federal law enforcement agencies. The noncriminal justice
name-based checks are searched against the descriptive data in the FBI
maintained records, using the applicant's name and descriptive data,
such as his date of birth. Since the CHRI response, if any, to the
name-based CHRI request is not obtained through positive
identification, such as fingerprints, the FBI does not confirm that the
CHRI is related to the applicant. The name-based CHRI checks are
available only to authorized federal agencies for purposes specifically
authorized by statute, e.g., pursuant to the Security Clearance
Information Act, 5 U.S.C. 9101. The FBI had previously established fee
classes for name-based CHRI checks which differentiated between manual
and electronic submissions. The proposed rule continues these same
classes.
New Services
If the FBI offers a new service or otherwise requires a new fee
class in the future, the charge for this new fee class will be based
upon the closest existing fee class until such time as a new fee class
can be established. Authorized users will be advised of the new service
or new fee class by CJIS Information Letter or other CJIS
communication. The FBI will calculate a fee for the new fee class using
the methodology discussed in this NPRM, and will publish a revised fee
schedule as a notice in the Federal Register.
Discussion of Proposed Changes to Fees and Fee Classes
Proposed changes to the fees and fee classes, due to automation
costs, types of transaction, and the submission of volunteers under the
VCA are discussed in detail below.
Automation Cost
As noted above, OMB Circular A-25 defines ``full costs'' to include
all direct and indirect costs, including the cost of improving or
automating processes used to provide the services in question.
Similarly, Public Law 101-515 authorizes the FBI to establish fees for
fingerprint-based and name-based CHRI checks at a level sufficient to
defray the expenses of automating fingerprint identification and
criminal justice information services and associated costs. Even so,
the FBI did not previously charge federal agencies the full costs
contemplated by OMB Circular A-25 or Public Law 101-515. The FBI
proposes to establish fees for all users, at a level that will permit
all costs, including automation expenses, to be fully defrayed, as
authorized by Public Law 101-515. The FBI has determined that actual
costs for volunteers submitting under the VCA will be defined to
include the cost of the automation of the fingerprint services, but not
to include the cost of the automation of other criminal justice
information services.
Type of Transaction
Under the proposed rule, the type of transaction will be a
determining factor in calculating the fee charged for all fingerprint-
based and name-based CHRI checks, except for volunteer checks submitted
under the VCA which are calculated separately.
1. Fingerprint-Based Checks
Under current business practice, requests for fingerprint-based
CHRI checks may be submitted manually, by sending a hard-copy
fingerprint card, or electronically, by sending fingerprint images
through the Integrated Automated Fingerprint Identification System
(IAFIS). Responses to manual submissions are provided in hard-copy
format and responses to electronic submissions are provided in an
electronic format. Some agencies have been authorized by the CJIS
Division to request hard-copy responses to electronic submissions.
Processing electronic submissions is more efficient and cost-
effective than processing manual submissions which require entry of the
descriptive data and scanning of the fingerprint images to convert the
hard-copy card into an electronic format for processing by the IAFIS.
After processing, the IAFIS response is then converted to a hard-copy
format for delivery by mail to the requester. The independent analysis
by BearingPoint determined that the cost of processing a manually
submitted fingerprint-based CHRI check is significantly higher than the
cost of processing an electronically submitted fingerprint-based CHRI
check. Under current business practice, agencies paying with federally
appropriated funds are charged higher fees for processing manual checks
than for electronic fingerprint-based CHRI checks, while agencies
paying with other funds are charged the same fee for both types of
transactions. Under the proposed rule, the FBI will charge all agencies
higher fees for manual than for electronic checks.
Under current business practice, an agency submitting fingerprints
electronically but requesting a manual
[[Page 34909]]
response is charged the fee for a manual submission and response.
BearingPoint also calculated the cost of processing a transaction with
an electronic submission of fingerprints and a manual response, and
that calculation was used to establish a separate fee class for
processing electronic submission/manual response transactions.
2. Name-Based CHRI Checks
Under current business practice, if specifically authorized by
statute, requests for name-based CHRI checks may be submitted manually
or electronically by federal agencies. The proposed rule continues
these same fee classes.
Volunteer Submissions Under the VCA
Fingerprint-based CHRI checks for volunteers submitted under the
VCA are in a separate fee class since the pertinent statute provides
that the fee charged by the FBI in such cases may not exceed $18.00 or
the actual cost of the background check, whichever is less. The FBI is
interpreting actual cost to be the full cost as defined by OMB Circular
A-25. The FBI has determined that full cost for volunteers submitting
under the VCA will include the direct and indirect personnel and
nonpersonnel costs, the cost of the automation of the fingerprint
services, and the cost of billing services, where applicable. The full
cost for volunteers submitting under the VCA will not include the cost
of the automation of other criminal justice information services. Due
to the very small volume of volunteer transactions, it is more cost-
effective to charge all volunteer submissions under the VCA the same
fee regardless of submission type.
Detail of the Costs Used To Calculate the Fee
The costs of providing the fingerprint-based and name-based CHRI
check services were calculated using the ABC model constructed by
BearingPoint. The costs include operational labor costs; support labor
costs; nonlabor costs including unfunded personnel and judgment fund
costs; fingerprint identification automation costs; other criminal
justice information service automation costs; and billing costs. These
costs are discussed in more detail below.
Operational labor costs for fingerprint-based and name-based CHRI
checks include the costs of those FBI employees who are involved in the
operations and maintenance of the IAFIS and the processing of these
transactions. Examples of these employees would include fingerprint
examiners who use the IAFIS to make positive fingerprint
identifications; information technology specialists who run the
automated system network and communications lines; and a variety of
other specialist positions providing customer service, billing,
communication, policy, audit, and other direct support for the
fingerprint-based and name-based CHRI check processes. The majority of
these employees spend all of their time supporting these processes
except the information technology specialists whose support is often
provided for the whole CJIS Division infrastructure including other
systems. BearingPoint conducted a robust analysis of the time these
employees spent in support of each system within the overall
infrastructure known as the system of systems. The costs for these
employees are assigned to the user fee classes of service based on the
results of this analysis.
Support labor costs for fingerprint-based and name-based CHRI
checks include the costs of those FBI employees who are not directly
involved in the CHRI check processes but who provide necessary support
for these operations. Like the information technology specialists who
support the whole CJIS Division infrastructure, many of the FBI
employees perform activities which support a wide array of services.
The costs for these employees were assigned to the user fee classes of
service and to the general account for all other services based upon an
analysis of the level of effort these positions provide to support the
fingerprint-based and name-based CHRI check services. Examples of these
employees would include human resource specialists, budget analysts,
financial analysts, administrative support specialists, legal
specialists, and some higher level management positions.
Nonlabor costs include items such as travel, utilities, printing,
contractor support, supplies, and equipment. These costs also include
depreciation for the facilities and buildings that the FBI owns. The
equipment costs do not include any costs for the IAFIS. These costs
could be listed here, but rather are listed in the fingerprint
identification automation section for clarity. In all cases, these
costs are assigned to the fingerprint-based and name-based CHRI check
services and to the general account for all other services as
appropriate based on detailed analysis of how these items are used.
Unfunded personnel costs were analyzed and the Federal Employee
Compensation Account Workers Compensation and Unemployment Compensation
costs were included in the ABC model constructed by BearingPoint. In
1956, Congress established a judgment fund to cover payment for legal
judgments against the United States. The FBI's contribution to the
judgment fund was also included in the ABC model. These costs were
assigned to the fingerprint-based and name-based CHRI check services as
well as to the general account as appropriate.
The fingerprint identification process automation costs include
depreciation on the cost of automating the process for fingerprint-
based and name-based CHRI checks. Note that these name-based CHRI
checks are searches based on the biographic identifiers associated with
fingerprint-based CHRI files and as such are part of the fingerprint
identification process. These costs also include the costs for
implementing a Continuity of Operations Program (COOP) as mandated by
OMB Circular A-130. Again, these costs were assigned to the
fingerprint-based and name-based check services as appropriate. COOP
costs cover more than the fingerprint identification system since the
FBI plan covers the entire infrastructure. These costs were also
assigned to the general account as appropriate. The fingerprint
identification process automation costs could be collected under OMB
Circular A-25 as full costs of providing these services, but are being
identified separately since the FBI also has specific authority under
Public Law 101-515 to collect user fees to cover these costs.
Public Law 101-515 also authorizes the FBI to collect user fees to
cover the automation costs for other criminal justice information
services. These services are not specifically defined, and the FBI
retains the authority to determine which system automation efforts will
be classified as criminal justice information systems and funded with
user fees. For the purposes of calculating these proposed fees, costs
for automating certain functionalities, such as the NCIC, UCR, and the
N-DEx, were included.
Electronic Fingerprint-Based CHRI Checks
The categories of cost were calculated for the electronic
fingerprint-based CHRI check service as described above:
Electronic Fingerprint-Based CHRI Check Costs
[In thousands]
------------------------------------------------------------------------
------------------------------------------------------------------------
Operational Labor.......................................... $30,085
Support Labor.............................................. 11,119
Nonlabor................................................... 38,152
Fingerprint Identification Automation...................... 86,829
[[Page 34910]]
Other Criminal Justice Information Services Automation..... 50,253
Billing Costs.............................................. 25,223
------------
Total Costs............................................ * $241,661
------------------------------------------------------------------------
* Note: Numbers may not add up due to rounding.
Electronic Submission/Manual Response Fingerprint-Based CHRI Checks
After the ABC model constructed by BearingPoint was developed, the
CJIS Division added a new fee class for fingerprint-based CHRI checks,
submitted electronically but requiring a manual response. In order to
calculate the cost of these transactions, BearingPoint examined the
costs and activities which are applicable to the processing of
transactions submitted electronically but receiving a manual response.
These costs can not be detailed in the same manner as the costs within
the model because this fee was calculated outside of the model as a
unit cost.
Manual Fingerprint-Based CHRI Checks
The categories of cost were calculated for the manual fingerprint-
based CHRI check service as described above:
Manual Fingerprint-Based CHRI Check Costs
[In thousands]
------------------------------------------------------------------------
------------------------------------------------------------------------
Operational Labor Costs.................................... $6,380
Support Labor.............................................. 3,439
Nonlabor................................................... 8,803
Fingerprint Identification Automation...................... 7,371
Other Criminal Justice Information Services Automation..... 4,266
Billing.................................................... 2,141
------------
Total Costs............................................ * $32,400
------------------------------------------------------------------------
* Note: Numbers may not add up due to rounding.
Volunteer Fingerprint-Based CHRI Checks
As previously stated, the fee for fingerprint-based CHRI checks for
volunteers submitting under the VCA is statutorily limited to $18.00 or
the actual cost, whichever is less. The FBI has interpreted actual
costs to be the full costs that could be collected under OMB Circular
A-25. This includes the automation costs for the fingerprint
identification process, but does not include the automation costs for
other criminal justice information services. As stated previously, due
to the small volume of volunteer transactions, it is not cost effective
to charge different fees for volunteers based upon the type of
transaction. The categories of cost were calculated for the volunteer
fingerprint-based CHRI check service as described above:
Volunteer Fingerprint-Based CHRI Check Costs
[In thousands]
------------------------------------------------------------------------
------------------------------------------------------------------------
Operational Labor Costs.................. $557.
Support Labor............................ 206.
Nonlabor................................. 706.
Fingerprint Identification Automation.... 1,606.
Other Criminal Justice Information Not applied.
Services Automation.
Billing Costs............................ 467.
------------------------------
Total Costs.......................... * $3,541.
------------------------------------------------------------------------
* Note: Numbers may not add up due to rounding.
Electronic Name-Based CHRI Checks
Now that automation has significantly reduced response times for
fingerprint-based CHRI checks, name checks are becoming obsolete. While
these services are still being offered, the volume of these
transactions has continued to decline due in large part to the
increased speed of the fingerprint-based CHRI check service. Automation
costs have not been added to the name-based CHRI check costs. Since
name-based CHRI checks are only available to certain federal agencies,
it is known that all submissions are billed and a separate billing cost
was not calculated. The categories of cost were calculated for the
electronic name-based CHRI check service as described above:
Electronic Name-Based CHRI Check Costs
[In thousands]
------------------------------------------------------------------------
------------------------------------------------------------------------
Operational Labor Costs.................. $144.
Support Labor............................ 132.
Nonlabor................................. 160.
Fingerprint Identification Automation.... Not applied.
Other Criminal Justice Information Not applied.
Services Automation.
Billing.................................. Not applied.
------------------------------
Total Costs.......................... *$435.
------------------------------------------------------------------------
*Note: Numbers may not add up due to rounding.
Manual Name-Based CHRI Checks
As explained for electronic name-based CHRI checks, these costs do
not include the automation or billing costs. The categories of cost
were calculated for the manual name-based CHRI check service as
described above:
Manual Name-Based CHRI Check Costs
[In thousands]
------------------------------------------------------------------------
------------------------------------------------------------------------
Operational Labor........................ $182.
Support Labor............................ 89.
Nonlabor................................. 83.
Fingerprint Identification Automation.... Not applied.
Other Criminal Justice Information Not applied.
Services Automation.
Billing.................................. Not applied.
------------------------------
Total Costs.......................... *$355.
------------------------------------------------------------------------
* Note: Numbers may not add up due to rounding.
The Volumes Used To Calculate the Fee
The historical volumes of transactions for each type of service
were reviewed. In 1982, when the user fee was implemented, the FBI
processed 60,000 noncriminal fingerprint-based CHRI checks per month,
or about 720,000 per year. The volume of all fingerprint-based CHRI
checks has grown steadily; the FBI processed over 10 million
noncriminal fingerprint-based CHRI checks in FY 2005, of which over 9
million were subject to a user fee. However, within this steady growth,
there is an overall trend for manual transactions to decrease and for
electronic transactions to grow even more rapidly than the overall
volumes indicate.
After careful analysis of alternative approaches, it was determined
that the most appropriate method to use for predicting the volumes for
the fee calculation was a three-year average variance. The volume
changes from FY 2003 to FY 2004, from FY 2004 to FY 2005, and from FY
2005 to FY 2006 were calculated and then averaged to determine a growth
factor which was added to the FY 2006 volume to determine the projected
FY 2007 volume. The growth factor was then added again to the projected
FY 2007 volume to project the FY 2008 volume. An exception was made for
the new fee class for fingerprint-based CHRI checks submitted
electronically but receiving a manual response. In the past, these
transactions were billed as manual transactions. In developing a volume
projection, the FBI analyzed the transactions submitted by the current
authorized users and estimated that 100,000 fingerprint-based CHRI
checks submitted electronically but receiving a manual response would
be processed in FY 2008. This number was then subtracted from the
manual FY 2008 projection and added as the electronic submission/manual
response FY 2008 projection. The historical and projected volumes for
fee-producing name-based
[[Page 34911]]
and fingerprint-based CHRI checks are shown in the chart below.
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2003 FY 2004 FY 2005 FY 2006 Three-year FY 2007 FY 2008
Service actual actual actual actual average projected projected
volume volume volume volume variance volume volume
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fingerprint-Based CHRI Checks
--------------------------------------------------------------------------------------------------------------------------------------------------------
Manual....................................................... 2,000,448 1,434,654 1,382,073 1,442,527 -185,974 1,256,553 *970,580
Electronic Submission/Manual Response........................ NA NA NA NA NA NA *100,000
Electronic................................................... 5,777,395 6,668,981 7,874,995 9,877,755 1,366,787 11,244,542 12,611,328
Volunteer.................................................... 64,401 92,176 150,384 165,756 33,785 199,541 233,326
--------------------------------------------------------------------------------------------------------------------------------------------------------
Name-Based CHRI Checks
--------------------------------------------------------------------------------------------------------------------------------------------------------
Manual....................................................... 377 261 313 281 -32 249 217
Electronic................................................... 503,665 325,420 353,570 326,815 -58,950 267,865 208,915
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 100,000 transactions moved from Manual to Electronic In/Manual Out service category to reflect implementation of the new fee class. These transactions
are currently billed as manual transactions.
IV. Revised Fee Schedule
BearingPoint's final fee recommendations were made by dividing the
costs for each service by the projected volume of transactions. The
resulting unit costs were then rounded up to the next quarter dollar
($.25), an amount chosen to ensure calculation of full costs while
avoiding calculation of excessive user fee revenues. The FBI then
independently reviewed the BearingPoint recommendations, compared them
to current fee calculations and plans for future services, and
determined that the revised schedules were both objectively reasonable
and in consonance with the underlying legal authorities. The following
chart provides the revised fee schedule for the new classes defined
above. The net amount to be remitted by a CSBP is provided for
information purposes.
Fingerprint-Based CHRI Checks
------------------------------------------------------------------------
The fee to be But, the amount
remitted with a to be remitted
If the check is a/an . . . direct payment by a CBSP is . .
is . . . .
------------------------------------------------------------------------
Electronic transaction.............. $19.25 $17.25
Electronic submission/manual 26.00 24.00
response transaction...............
Manual transaction.................. 30.25 28.25
Volunteer under the VCA transaction. 15.25 13.25
------------------------------------------------------------------------
Name-Based CHRI Checks
[Only available to federal agencies with statutory authority to request
checks]
------------------------------------------------------------------------
The fee is . . .
If the check is a/an . . .
------------------------------------------------------------------------
Electronic transaction................................ $2.25
Manual transaction.................................... 6.00
------------------------------------------------------------------------
Under the revised schedule, user fees for many fingerprint-based
and name-based CHRI checks will increase compared to current charges.
However, the fees for fingerprint-based CHRI checks funded with other
than federal appropriations and the fees for volunteers under the VCA
will decrease and the fees for manual name-based CHRI checks will
remain steady.
V. Administrative
Consultation With Federal, State, Tribal, and Local Governmental and
Other Entities That Submit Fingerprint-Based and Name-Based CHRI Checks
The FBI has provided information about this proposed rule to the
CJIS Advisory Policy Board (APB), an advisory committee chartered under
provisions of the Federal Advisory Committee Act of 1972, 5 U.S.C.
Appendix 2. The APB is comprised of representatives of local, state and
federal law enforcement and criminal justice agencies and is
responsible for reviewing policy, technical, and operational issues
related to the criminal justice information services of the FBI. The
FBI has also provided information about the proposed rule to the
Compact Council, created pursuant to the National Crime Prevention and
Privacy Compact Act of 1998, 42 U.S.C. 14611-14616. The Compact
Council, comprised of state and federal noncriminal justice and
criminal justice agencies, is permitted to promulgate rules and
procedures governing the exchange, as authorized by federal and state
statutes, of CHRI for noncriminal justice purposes. The FBI has also
provided information about this proposed rule to several of the federal
agencies which submit fingerprint-based or name-based CHRI checks.
Effective Date for the New Fees
The FBI seeks public comment in response to this proposed rule.
Subsequent to the receipt of comments, the FBI will publish a final
rule in the Federal Register which will outline the FBI's authority to
establish, collect, and revise its fees. The FBI will publish
concurrently a notice in the Federal Register which will provide the
fee schedule. This new schedule will be put into effect in 90 days
following publication of the notice.
Other Proposed Revisions or Studies
The FBI is committed to regularly reviewing and updating the costs
for providing fingerprint-based and name-based CHRI checks. The fees
will be revised, as appropriate, based on changes in cost and volume.
Additionally, the FBI plans to conduct specific analyses in the
following areas.
1. As mentioned earlier, the FBI will be revising the fee for the
production of an FBI identification record in response to the written
request by the subject
[[Page 34912]]
thereof as authorized in 28 CFR 16.33 in a separate rule.
2. As explained previously, record checks under Public Law 101-515
may be provided by both the RMD and the CJIS Division of the FBI. The
proposed rule implements fees for the checks provided by the CJIS
Division only. User fees for checks performed by RMD will be the
subject of a separate rulemaking.
3. The FBI, as stated in section III above, will conduct an in-
depth analysis of the amount that CBSPs are allowed to retain to cover
the administrative costs that would be incurred by the FBI if
centralized billing services were not available. This analysis will
also develop and review alternative strategies to the practice of
centralized billing services.
Communication Regarding the Fees
Any changes to the Fee Schedule will be published in the Federal
Register. The FBI will continue to provide policy updates and
suggestions for improved service, including tips for avoiding delays
and errors, through CJIS Information Letters. Information on technical
changes in fee collection processes, including instructions for the
appropriate use of system codes that affect fees charged, will also be
provided through CJIS Information Letters.
VI. Regulatory Certifications
Regulatory Flexibility Act
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' which will ``describe the impact of the proposed rule on
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an
agency to certify, in lieu of preparing an analysis, that the proposed
rulemaking is not expected to have significant economic impact on a
substantial number of small entities. Small entities are defined by the
RFA to include small businesses, small organizations, and small
governmental jurisdictions.
The fees for providing fingerprint-based and name-based CHRI
background checks for noncriminal justice purposes normally are imposed
upon the individual subject of the background check, rather than upon
small entities. In addition, under the new fee schedule that became
effective October 1, 2007, the fee imposed on nonfederal users
submitting electronic fingerprint-based CHRI dropped nearly 20 percent
per request. This lower fee is applicable to more than 90 percent of
the total nonfederal fingerprint-based checks. However, the fee for
manual searches was increased, reflecting comparatively higher
processing costs for those services. As a result of these different
fees, the FBI expects that users will seek the lower costs associated
with providing electronic fingerprint submissions.
State and federal agencies and certain private entities serve as
CBSPs, or entities that collect and submit an individual's fingerprints
to the FBI and remit the fee charged to the individual. There are no
small businesses, organizations or governmental jurisdictions currently
providing billing services as CBSPs.
With regard to name-based CHRI checks, there is no direct or
indirect impact on small entities, as only federal agencies are
authorized to request name-based CHRI background checks, and federal
agencies do not fall within the definition of a ``small entity.''
Accordingly, the Director of the FBI hereby certifies that this rule
will not have a significant economic impact on a substantial number of
small entities.
Executive Order 12866 (Regulatory Planning and Review)
This regulation as been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review, section 1(b),
Principles of Regulation. The FBI has determined that this rule is a
significant regulatory action under Executive Order 12866, Regulatory
Planning and Review, section 3(f) and accordingly this rule has been
reviewed by the OMB.
Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Executive Order 13132 (Federalism)
This proposed rule will not have a substantial direct effect on 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. The fees for providing fingerprint-based
and name-based CHRI background checks for noncriminal justice purposes
are imposed upon the individual subject of the background check, rather
than on the state. Some states serve as CBSPs by collecting and
submitting an individual's fingerprints to the FBI and remitting the
fee charged to the individual. The proposed rule does not alter the
amount the FBI allows CBSPs to retain for providing these services, but
merely makes small adjustments to the fee schedule already in place.
The proposed rule does not alter any of the policy set out at 28 CFR
Part 20, or 28 CFR, Parts 901-906. Therefore, in accordance with
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Unfunded Mandates Reform Act of 1995
This proposed rule does not contain a mandate that will result in
the expenditure by state, local, and tribal governments (in the
aggregate) or by the private sector of $100 million or more in any one
year, and it will not significantly or uniquely affect small
governments. While CBSPs may need to adjust their internal automated
systems and processes, the change in fee amount is a foreseeable and
expected eventuality and therefore, it is expected that these internal
systems and processes were created with the capability of adjusting to
changed fees without great cost or effort. Therefore, no actions were
deemed necessary under the provisions of the Unfunded Mandates Reform
Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
proposed rule will not result in an annual effect on the U.S. economy
of $100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of U.S.-based companies to
compete with foreign-based companies in domestic and export markets.
List of Subjects in 28 CFR Part 20
Classified information, Crime, Intergovernmental relations,
Investigations, Law enforcement, Privacy.
Accordingly, for the reasons set forth in the preamble, Part 20 of
Chapter I of Title 28 of the CFR is proposed to be amended as follows:
PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS
1. The authority citation for part 20 is revised to read as
follows:
Authority: 28 U.S.C. 534; Pub. L. 92-544, 86 Stat. 1115; 42
U.S.C. 3711, et seq., Pub. L. 99-169, 99 Stat. 1002, 1008-1011, as
amended by Pub. L. 99-569, 100 Stat. 3190, 3196; Pub. L. 101-515, as
amended by Pub.
[[Page 34913]]
L. 104-99, set out in the notes to 28 U.S.C. 534.
2. Amend Sec. 20.31 to add paragraph (e) to read as follows:
Sec. 20.31 Responsibilities.
* * * * *
(e) The FBI may routinely establish and collect fees for
noncriminal justice fingerprint-based and other identification services
as authorized by federal law. These fees apply to federal, state and
any other authorized entities requesting fingerprint identification
records and name checks for noncriminal justice purposes.
(1) The Director of the FBI shall review the amount of the fee
periodically, but not less than every four years, to determine the
current cost of processing fingerprint identification records and name
checks for noncriminal justice purposes.
(2) Fee amounts and any revisions thereto shall be determined by
current costs, using a method of analysis consistent with widely
accepted accounting principles and practices, and calculated in
accordance with the provisions of 31 U.S.C. 9701 and other federal law
as applicable.
(3) Fee amounts and any revisions thereto shall be published as a
notice in the Federal Register.
Dated: May 12, 2008.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
[FR Doc. E8-13819 Filed 6-18-08; 8:45 am]
BILLING CODE 4410-02-P