[Federal Register: May 6, 2010 (Volume 75, Number 87)]
[Rules and Regulations]
[Page 24796-24799]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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DEPARTMENT OF JUSTICE
28 CFR Part 20
[Docket No. FBI 118]
RIN 1110-AA29
FBI Records Management Division National Name Check Program
Section User Fees
AGENCY: Federal Bureau of Investigation (FBI), Justice.
ACTION: Final rule.
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SUMMARY: This Final Rule sets out the Director of the FBI's authority
to establish and collect fees for providing name-based background
checks conducted by the National Name Check Program (NNCP) of the
Records Management Division (RMD). The rule explains the methodology
used to calculate the fees and provides that future fee adjustments
will be made by notice published in the Federal Register.
DATES: This rule is effective June 7, 2010.
FOR FURTHER INFORMATION CONTACT: FBI, Records Management Division,
National Name Check Program Section, 170 Marcel Drive, Winchester, VA
22602, Attention: Michael Cannon.
SUPPLEMENTARY INFORMATION:
I. Background
On September 26, 2008, the FBI published a Notice of Proposed
Rulemaking (NPRM) setting forth the FBI's statutory authority to
establish and collect fees for named-based NNCP checks and other
identification services performed by the RMD. See 73 FR 55,794 (2008)
(to be codified at 28 CFR part 20). The FBI's user fees are
differentiated by the FBI Division providing the service. The user fees
for the NNCP checks provided by the RMD are the subject of this
rulemaking. Fees for the criminal history record information checks
provided by the Criminal Justice Information Services Division (CJIS)
were the subject of a separate rulemaking and associated notice
published in the Federal Register on April 13, 2010 at 75 FR 18751 and
18887. Because the FBI was uncertain which rule would be finalized
first, both the CJIS fee NPRM and the NNCP fee NPRM proposed to amend
28 CFR 20.31 by adding an identical paragraph (e). The NNCP fee NPRM
also proposed to add a new paragraph (f) regarding the collection of
fees for named-based background checks. Because paragraph (e) already
has been added to section 20.31 by the CJIS fee final rule, the NNCP
final rule has been conformed by adding only the new paragraph (f) to
section 20.31.
The NPRM regarding the NNCP checks explained the methodology used
to calculate the fees, provided a proposed fee schedule and explained
that the fees may 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 NPRM further
advised that the current fees would be published concurrently with this
final rule as a notice in the Federal Register. This final rule
implements the FBI's statutory fee authority. All future fee
adjustments will be made by notice published in the Federal Register.
II. Legal Authority to Collect Fees
The FBI has collected fees for the NNCP since 1991, when the
authority to establish and collect fees to process name-based CHRI
checks, was set out in Public Law (Pub. L.) 101-515. This statutory
authority was renewed annually by subsequent appropriations
legislation. Under Public Law 101-162, the FBI also was 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 FBI does not charge a fee for NNCP services performed for
criminal justice purposes, as those services are supported by federal
appropriations.
III. Reasons for the Proposed Fee Schedule
While the RMD has automated some portions of the NNCP process, the
current fees, which have not changed since 1991, do not reflect the
expense of personnel time and other costs involved in the analysis of
the pertinent information. The NNCP disseminates information from the
FBI's Central Records System (CRS) in response to requests submitted by
federal agencies, Congressional committees, the federal judiciary,
friendly foreign police and intelligence agencies. The CRS contains the
FBI's administrative, personnel, and investigative files. The NNCP was
established under Executive Order No. 10450, issued on April 27, 1953,
18 FR 2489, which mandated National Agency checks in the background
investigation of prospective Government employees. The FBI performs the
primary National Agency check on all U.S. Government employees and
provides information to more than 40 federal agencies. The information
from the CRS, disseminated under the NNCP, is evaluated by governmental
agencies before bestowing privileges such as visas, naturalization or
work authorizations under the Immigration and Nationality Act, Public
Law 82-414 as amended, and other federal laws.
The CRS consists of administrative, applicant, criminal, personnel,
and other files arranged by subject matter relating to an individual,
an organization, or other matters. The CRS records are maintained at
FBI Headquarters and FBI Field Offices. The CRS can be accessed through
the General Indices, which are arranged in alphabetical order by
subject, such as the names of individuals and organizations.
In 1995, the FBI implemented the Automated Case Support (ACS)
system to access 105 million records from previous automated systems.
The ACS consists of three automated applications that support case
management functions for all investigative and administrative cases.
The Investigative Case Management application is used to open, assign
and track leads and close investigative and administrative cases. The
Electronic Case File serves as the central electronic repository for
the FBI's official text-based documents. The Universal Index (UNI)
provides a complete subject and case index to approximately 99 million
records in investigative and administrative cases. The UNI lists the
names of individuals or entities, with identifying information such as
date of birth and social security number.
The processing of an NNCP search begins with the search of a
person's name in the UNI to locate all instances of the person's name
and identifying information in the main and reference files. A main
file concerns the subject of an FBI investigation, and a reference file
concerns an individual whose name appears in part of an FBI
investigation, such as an associate or witness. Over 60 percent of the
initial NNCP electronic checks in UNI yield no identifiable information
regarding the person and are termed ``No record,'' and that information
is reported to the requesting agency. If the search of UNI yields
possibly identifiable information, the
[[Page 24797]]
NNCP request requires additional review and an additional manual name
search is conducted. If identifiable information is located, the
records are retrieved and reviewed for possible derogatory information
concerning the subject of the NNCP request. The FBI forwards a summary
of the derogatory information to the requesting agency.
By letter, dated August 30, 2007, to all RMD customers using the
NNCP for noncriminal justice purposes, the FBI established the proposed
fee schedule on an interim basis, effective October 1, 2007. RMD
customers were advised of the revised fees prior to the start of FY
2008, thereby avoiding costly and confusing mid-year changes. The FBI
will continue to analyze its costs in processing searches in the NNCP
and will review related fee charges periodically, as recommended by
Office of Management and Budget Circular No. A-25, (OMB Circular A-25)
User Charges. Any adjustments to the FBI's fees will be announced by
notice in the Federal Register.
IV. Standards and Guidelines Used To Calculate the Fee
Public Law 101-515 links the user fees charged for processing name
checks and fingerprint identification records to the cost of providing
these services. Such costs not only include the salaries of employees
engaged in providing the services but, in accordance with generally
accepted accounting principles, also include such expenses as capital
investment, depreciation, automation, and so forth. Congress recognized
these additional expenses of processing records by authorizing 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 Office Appropriation
Act of 1952, 31 U.S.C. 9701, which is implemented by specific
guidelines in OMB Circular A-25. Since the FBI has express 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; however, the FBI did look to OMB Circular A-25 for guidance. For
example, OMB Circular A-25's definition of ``full cost'' (``all direct
and indirect costs to any part of the Federal Government of providing a
good, resource, or service'') was used as a model by the FBI in
establishing the subject user fees, including direct and indirect
personnel costs, physical overhead, and other indirect costs such as
material costs, utilities and equipment.
V. Calculation of the Revised Fee
The FBI hired a contractor, Grant Thornton LLP., 333 John Carlyle
Street, Alexandria, Virginia, 22314, (Grant Thornton) to conduct an
independent analysis of pertinent costs and to recommend a revised fee
schedule for the NNCP checks conducted by RMD. 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, Grant
Thornton developed a cost accounting methodology and related cost
models based upon the concept and principles of activity-based costing
(ABC). The cost models identified the total resource costs associated
with the services provided to RMD customers, including personnel (e.g.,
salary and benefits), non-labor (e.g, material, equipment, and
facility) and overhead (e.g., management and administration) costs, and
assigned or allocated these costs to the various service categories
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. The unit costs for RMD's
NNCP services incorporated in this study were derived from a robust
costing network that is based on the principles of ABC, a widely
recognized and accepted cost accounting methodology. Grant Thornton
generated the revised fee schedule based upon these unit costs.
The methodology focused on developing full cost information for
NNCP's activities and services to provide a basis for the fee
recommendations. FY 2005 costs were used to develop baseline cost
information, and additional estimated costs and adjustments were
included to estimate resources for FY 2008 and FY 2009. The projected
cost information served as the basis for the fee recommendations.
Grant Thornton developed their cost accounting methodology using
the following steps for the non-automation portion of the fee. First,
NNCP services and activities performed for name checks were defined.
Then operational labor costs, support labor costs and non-labor costs,
including appropriate overhead and support costs, were identified and
assigned to activities and then to services. Estimated costs,
transaction volumes and trends were analyzed to predict appropriate
costs and transaction volumes for FY 2008. 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. Although NNCP fees have not included this
additional amount to date, the FBI considers the service provided by
the NNCP as being a criminal justice information service. The costs
associated with enhancing the NNCP, including the automation efforts,
were identified and included in the name check fee study reflected in
the rule. The estimated costs for these automation efforts were based
on best available information regarding planned information technology
investments. The projected FY 2008 and FY 2009 volumes were then used
to calculate the unit costs for this portion of the fee. Once the unit
costs were calculated, Grant Thornton generated the revised fee
schedule. The FBI then independently reviewed the Grant Thornton
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.
VI. Revised Fee Schedule
As noted above, the FBI established the fee schedule on an interim
basis, effective October 1, 2007. Fee classes remained essentially the
same, with the exception that manual submissions and expedited
processing requests were consolidated into a single class. Under the
interim fee schedule, the fee was increased only 10 cents for users
submitting electronic requests that are limited to batch processing
(from $1.40 to $1.50). The fee increases for name checks involving non-
electronic submissions and other special services were more substantial
because of the higher cost for processing manual submissions and
expediting responses ahead of routine transactions. Unit costs are
rounded up to the next $0.25.
[[Page 24798]]
Summary of Fee Changes
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Total fee
Service Previous fee Interim fee increase
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Electronic Submission........................................... .............. .............. ..............
Batch Process Only.............................................. $1.40 $1.50 $0.10
Batch + File Review............................................. 10.65 29.50 18.85
Manual Submission............................................... 12.00 56.00 44.00
Expedited Submission............................................ 22.65 56.00 33.35
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The FBI will continue to analyze its costs and will review related
fee charges periodically, as recommended by OMB Circular A-25. The
final rule advises that future adjustments to the FBI's fees will be
announced by notice in the Federal Register.
VII. Administrative Consultations With Interested Federal Agencies
The FBI has provided information about this rule to the largest
three customers by volume of submissions, the United States Citizenship
and Immigration Services, the Office of Personnel Management and the
Department of State. The FBI will develop standards of performance and
timeliness with these three federal customers. As appropriate, the FBI
will pursue similar arrangements with its other federal customers.
Discussion of Comments
Only one comment on the proposed rule was received. An organization
of research universities expressed concern that the rule might limit
access to FBI records for research or medical purposes. This rule,
however, simply sets out the Director of the FBI's authority to
establish and collect fees for providing name-based background checks
conducted by the NNCP of the RMD. The rule does not have any impact on
procedures of access to research, statistical or human subject
information. Therefore, after carefully reviewing the single comment to
the NPRM, the FBI has determined that no changes to the rule are
necessary.
VIII. 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.
This rule only concerns federal agencies authorized to request
name-based record 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 has 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 Office of Management and Budget.
Executive Order 12988 (Civil Justice Reform)
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Executive Order 13132 (Federalism)
This final 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 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 final 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.
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 final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
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.
IX. Conclusion
After careful consideration, the Department does not believe that
any change to the rule is necessary based on the comment it received.
List of Subjects in 28 CFR Part 20
Classified information, Crime, Intergovernmental relations,
Investigations, Law enforcement, Privacy.
0
Accordingly, pursuant to the authority set forth in Public Law 101-515,
as amended by Public Law 104-99, set out in the notes to 28 U.S.C. 534,
Part 20 of Chapter I of Title 28 of the CFR is amended as follows.
PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS
0
1. The authority citation for Part 20 continues 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. L. 104-99, set out in the notes to 28 U.S.C. 534.
0
2. Amend Sec. 20.31 to add paragraph (f) to read as follows:
Sec. 20.31 Responsibilities.
* * * * *
(f) The FBI will collect a fee for providing noncriminal name-based
[[Page 24799]]
background checks of the FBI Central Records System through the
National Name Check Program pursuant to the authority in Pub. L. 101-
515 and in accordance with paragraphs (e)(1), (2) and (3) of this
section.
Dated: April 26, 2010.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
[FR Doc. 2010-10628 Filed 5-5-10; 8:45 am]
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