[Federal Register Volume 75, Number 70 (Tuesday, April 13, 2010)]
[Rules and Regulations]
[Pages 18751-18755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8385]
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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: 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 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. It further provides
that future fee adjustments will be made by notice published in the
Federal Register.
DATES: This final rule is effective May 13, 2010.
FOR FURTHER INFORMATION CONTACT: FBI Criminal Justice Information
Services Division, 1000 Custer Hollow Road, Module E-3, Clarksburg,
West Virginia 26306, Attention: Christopher L. Enourato.
SUPPLEMENTARY INFORMATION:
I. Background
On June 19, 2008, the FBI published a Notice of Proposed Rulemaking
(NPRM) setting forth 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. See 73 FR 34905 (2008) (to be codified at 28 CFR part 20).
The NPRM explained the methodology used to calculate the FBI's
revised fees, provided a proposed fee schedule, and 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.
[[Page 18752]]
II. 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.''
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 Office of Management and Budget (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 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 Volunteers for Children Act (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
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 non-
automation 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.
[[Page 18753]]
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 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.
IV. Proposed Changes to the Fee Schedule
Fingerprint-Based CHRI Checks
The FBI utilized categories or fee classes to set the charges for
fingerprint-based CHRI checks. Fee classes are determined by the:
Type of transaction--manual, electronic, or electronic
submission with manual response, or
Volunteer status under the VCA.
Name-Based CHRI Checks
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
fee classes for name-based CHRI checks differentiate between manual and
electronic submissions.
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 the NPRM and will publish a revised fee
schedule as a notice in the Federal Register. See 73 FR 34906-07
(2008).
[[Page 18754]]
V. Discussion of Comments
Comments on the proposed rule were received from two individuals
and one professional association.
The comments from the professional association and an individual
were fully supportive of the proposed rule. The letter from the
professional association stated, ``We appreciate the importance of
maintaining rigorous personnel security practices, and believe the
FBI's support of non-criminal CHRI checks, whether fingerprint or name-
based, is necessary to the success of these programs.'' The final
comment, from an individual, concerned the need for increased
regulation of hazardous materials transportation, rather than the NPRM.
After reviewing the comments, the FBI has determined that no changes to
the proposed rule are necessary.
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 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 OMB.
Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Executive Order 13132 (Federalism)
This 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 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 final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
final 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 these comments.
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.
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 1 of Title 28 of the CFR is amended as follows:
PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS
0
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. L. 104-99, set out in the notes to 28 U.S.C. 534.
[[Page 18755]]
0
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: March 15, 2010.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
[FR Doc. 2010-8385 Filed 4-12-10; 8:45 am]
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