FBI Records Management Division National Name Check Program Section User Fees, 55794-55800 [E8-22710]
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Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Proposed Rules
[FR Doc. E8–22568 Filed 9–25–08; 8:45 am]
FOR FURTHER INFORMATION CONTACT:
BILLING CODE 4910–13–C
Michael Cannon, FBI, Records
Management Division, National Name
Check Program Section, 1325 G Street,
Room G–300, Washington, DC 20005,
telephone number (202) 220–1198.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF JUSTICE
28 CFR Part 20
[FBI Docket No. 118]
RIN 1110–AA29
FBI Records Management Division
National Name Check Program Section
User Fees
Federal Bureau of Investigation
(FBI), Justice.
ACTION: Notice of proposed rulemaking.
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AGENCY:
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 non-criminal justice purposes
including employment and licensing.
The fees may include an amount to
establish a fund to defray expenses for
the automation of criminal justice
information services and associated
costs. The proposed rule concerns the
name-based checks conducted by the
Records Management Division (RMD) in
the National Name Check Program
(NNCP).
The rule explains the methodology
used to calculate the revised fees and
provides a proposed fee schedule. After
public comment, a final rule and notice
of the final fee schedule will be
published in the Federal Register.
DATES: Written comments must be
received on or before November 25,
2008.
ADDRESSES: You may submit comments,
identified by Docket No. FBI 118, by
either of the following methods:
• Federal Regulations Web site: You
may review this regulation on https://
www.regulations.gov and use the
comment form for this regulation to
submit your comments. You must
include Docket No. FBI 118 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, Records Management Division,
National Name Check Program Section,
1325 G Street, Room G–300,
Washington, DC 20005, Attention:
Michael A. Cannon.
To ensure proper handling, please
reference Docket No. FBI 118 in your
comment. When submitting written
comments, please allow for delivery
time plus at least two days for internal
mail security scanning and delivery.
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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 https://
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 https://
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 purposes of discussion, FBI user
fees may be differentiated by the FBI
Division providing the service. The user
fees for the National Name Check
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Program (NNCP) checks provided by the
Records Management Division (RMD)
are the subject of this rulemaking. Fees
for the criminal history record
information checks provided by the
Criminal Justice Information Services
Division (CJIS) are the subject of a
separate rulemaking (Docket No. FBI
114, RIN 1110–AA26). The separate CJIS
fee rule also proposes to amend 28 CFR
20.31. In the event that the CJIS fee rule
is finalized first, the revisions proposed
in this rulemaking to section 20.31(e)
will be conformed with the changes
contained in the CJIS fee rule.
The rulemaking process provides
federal governmental agencies and the
public the opportunity to review and
comment on the methodology utilized
by the FBI to implement its statutory
authority to establish and collect fees
and the proposed fee schedule, and
advises that future fee adjustments will
be made by notice published in the
Federal Register. After analysis and
response to the comment, a final rule
and notice of the fee schedule will be
published in the Federal Register. This
rule will be published at Part 20 of 28
CFR.
FBI’s Legal Authority To Collect Fees
The FBI has collected fees for NNCP
checks since 1991, under the authority
set out in Public Law 101–162. This law
authorized the FBI to collect fees to
process identification records and name
checks for non-criminal justice purposes
and to set such 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.
National Name Check Program Services
Under Public Law 101–515, the FBI is
authorized to charge a fee for noncriminal justice name-based checks for
such purposes as immigration, Federal
Government employment and security
clearance processes. The FBI does not
charge a fee for NNCP services
performed for criminal justice purposes,
which are supported by federal
appropriations.
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. As explained below, the
NNCP disseminates information from
the FBI’s Central Records System (CRS)
in response to requests submitted by
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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 (NAC) in the background
investigation of prospective Government
employees. The FBI performs the
primary NAC on all U.S. government
employees and provides information to
more than 40 federal agencies based on
fiscal year (FY) 2005 data. 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 matter. 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 textbased 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
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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
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
non-criminal justice purposes, the FBI
established the proposed fee schedule
on an interim basis, effective October 1,
2007. That is the same process the FBI
has followed in implementing changes
in fees for other non-criminal justice
identification services. Although the
proposed rule will establish the user
fees by notice and comment rulemaking,
RMD customers were advised of the
revised fees prior to the start of FY 2008,
thereby allowing them to prepare for the
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. The proposed rule advises
that adjustments to the FBI’s fees will be
announced by notice in the Federal
Register.
III. Fee Calculation
Cost Accounting 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 this 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
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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, 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.
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. Generally accepted
standards and regulatory guidance were
followed, as specified by the Federal
Accounting Standards Advisory Board’s
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(FASAB) Statement Number 4:
Managerial Cost Accounting Concepts
and Standards for the Federal
Government and the Office of
Management and Budget’s (OMB)
Circular A–25: User Charges. 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.
• NNCP services and activities
performed for name checks were
defined.
• Operational labor costs were
identified and assigned to activities and
then to services.
• Support labor costs were identified
and assigned to activities and then to
services.
• Non-labor costs, including
appropriate overhead and support costs,
were identified and assigned to
activities and then to services.
• Cost estimates were made for FY
2008, when the revised user fees are
expected to be implemented.
• Transaction volumes and trends
were analyzed to predict appropriate
transaction volumes for fiscal year 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 this NPRM.
The FBI is therefore proposing to add an
automation surcharge to the NNCP fee
pursuant to Public Law 101–515. The
estimated costs for these automation
efforts were based on best available
information regarding planned IT
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
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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.
instead were based on capital
investment planning for the automation
portion of the fee described below. The
costs for the additional charge for
automation were based on the most
recent NNCP estimates for planned
systems automation and enhancement.
Overview of the Costs Included in the
Fee Calculation
The fee calculation was produced by
gathering the labor and non-labor costs
of those divisions of the FBI that
directly or indirectly support the
provision of the NNCP name check
services, and then using various drivers
to assign those costs to the identified
activities. The activities were then
assigned to the specific name check
service. The ABC model examined in
detail only those costs which were
related to the name check services.
These services included both the
criminal justice and law enforcement
and the non-criminal justice
identification services performed by the
NNCP. The discussion below is limited
to those costs in the ABC model which
were assigned to name check services
that are supported by the user fees. In
other words, even though the ABC
model calculated unit costs for all
NNCP name checks, the costs for
processing criminal justice name checks
will not be discussed in this regulation
since they are funded with
appropriations and not with user fees.
The costs for providing the feesupported name check services include
the personnel costs for both direct and
indirect support, as well as non-labor
costs such as travel, training, rent,
equipment, utilities, printing, contract
support, and supplies. In addition,
depreciation for existing nonautomation assets were included per
OMB Circular A–25 guidance. Finally,
portions of the FBI 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 financial systems and other
relevant information provided by FBI
personnel. The FY 2008 predicted costs
were obtained by adding an inflation
factor for labor and other non-labor
expenses and identifying other expected
changes in cost. 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
Proposed Changes to the Fee Schedule
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IV. Revised Fee Schedule
The current NNCP fee schedule
services are:
• Electronic (Batch Processed)
• File Review and Analysis
• Manual (Paper-Based Request)
• Expedite (Paper-Based Request)
FBI proposes a tiered fee structure
that maintains the distinction between
requests completed during the
automated batch processing and those
that must go on for additional file
review and analysis (formerly referred
to as indices popular). However, the
recommended fee structure does
maintain a distinction between requests
submitted electronically or on paper.
Manual requests represent
approximately 3% of name checks
processed, and NNCP is undertaking
efforts to encourage customers to submit
all name check requests electronically.
The proposed fee structure is:
• Electronic (Batch Processed)
• File Review/Analysis (Routine)
• File Review/Analysis (Expedited)
While there is not an expedite fee for
batch processing (they are typically
completed within a few days), the
proposed fee structure does distinguish
between routine processing and
expedited processing for name checks
that require additional review and
analysis. The FBI receives some requests
for expedited processing of name checks
but does not currently charge an
additional fee for the expedited service
(except for a small number of manual
requests). Expedited requests receive
priority processing, and the expedited
processing fee accounts for this
difference in prioritization by charging
the customer requesting expedited
service a higher amount to reflect the
preferential treatment and shorter
processing time.
Discussion of Proposed Changes to the
Fee Schedule
The fee structure described above was
proposed for the following reasons:
• Reflects difference in cost. There is
a significant difference between the unit
cost of automated batch processing and
file review and analysis. The
recommended fee structure reflects this
difference by charging a separate fee for
these two phases of the name check
process.
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• Reflects customer choice. The
recommended fee structure has separate
fees for routine and expedited
processing of name checks. This reflects
a customer choice regarding which level
of service to request.
• Move toward all electronic requests.
The NNCP intends to have all name
check requests provided by their
customers in electronic format. The
NNCP will develop a web interface to
allow the customers to enter the
appropriate data into the NNCP system
rather than mail a hard copy request.
Therefore, the recommended fee
structure does distinguish between
electronic and manual submission of
name check requests.
• Less administrative burden. The
recommended fee structure has fewer
separate services so there are fewer
services/fees to bill.
As mentioned previously, customers
receiving expedited processing should
be charged a higher fee compared to
routine processing. Customers who
receive expedited processing derive
additional benefit because they receive
preferential treatment; requests for
routine processing must wait longer
because the expedited requests get
moved up in the queue.
The Independent Offices
Appropriation Act (IOAA) serves as a
government-wide authority on fee
setting in the federal government.
According to the IOAA, a user charge
shall be based on:
• Costs to the Government
• Value of the service or thing to the
recipient
• Public policy or interest served
• Other relevant facts
Regarding the value criterion, requests
that receive expedited processing
receive higher value when compared to
those that receive routine processing.
The expedited processing fee accounts
for this added value by charging a
higher fee because the request receives
preferential treatment and is processed
in a shorter period of time.
Consideration was given to the
difference in processing time for routine
and expedited requests to calculate the
expedite fee. This data measured the
average number of days involved in
each type of request from the date
received to the date finalized. This
difference in processing time served as
the basis for adjusting the fees for
routine and expedited processing.
Detail of the Costs Used To Calculate
the Fee
The costs were calculated based on
the cost of providing NNCP name
checks using the ABC model
constructed by Grant Thornton. The
costs include labor costs, non-labor
costs (including unfunded personnel
and judgment fund costs), automation
costs; and general overhead and support
costs. These costs are discussed in more
detail below.
The cost structure reflects the type of
cost and organizational structure of the
NNCP and other FBI units involved in
providing name check services. The
NNCP costs are comprised of the
following categories:
Labor—includes personnel
compensation (salary and benefits) for
direct costs.
Center
FY2008
Name Check Center .............
Other Records Management
Units ..................................
Field Office Support ..............
Information Technology Support ....................................
Finance Division Support .....
Office of General Counsel ....
Document Scanning Support
$9,982,910
Total ...............................
24,927,040
908,046
8,278,415
233,569
64,247
2,535,942
2,923,911
Non-labor includes direct and indirect
non-labor expense data for the Name
Check and RMD front office, contractor
support, and depreciation.
Center
FY2008
Name Check/RMD ................
Batch Processing Enhancement ..................................
Contractor Support ...............
Depreciation/Equipment Replacement ..........................
$2,226,367
310,000
12,318,813
115,965
Center
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FY2008
Document Scanning/
Consumables ....................
1,836,257
Total ...............................
16,807,402
Bureau overhead/support includes
indirect costs to provide joint or
common services to NNCP.
Center
Office of the Chief Information Officer .........................
Human Resources ................
Finance .................................
Federal Employees’ Compensation Act ....................
Judgment Fund .....................
Security .................................
Telecommunications .............
Inspection .............................
Rent ......................................
Training and Development ...
Shipping ................................
Total ...............................
FY2008
$1,579,600
62,2626
85,428
49,446
7,005
445,185
196,212
52,361
2,146,320
11,556
101,264
4,736,639
Additional Charge for Automation
The FBI is authorized by law (Pub. L.
101–515) to charge an additional
amount for each name check to defray
expenses for automation and associated
costs. Under this authority, the
additional amount may be placed in a
separate account and retained until
expended. The proposed amount of the
additional charge is currently estimated
to be $1.00 per name check. The
additional amount was calculated by
dividing the estimated two-year total
cost of planned Information Technology
(IT) investments by the estimated twoyear volume of name check requests.
Current estimates total approximately
$7.2 million to be invested in system
enhancements during FY 2008 and FY
2009. The tables below provide more
detailed information on the planned IT
investments. The total is divided by an
estimated 2-year volume of 7.15 million
name check requests to arrive at an
additional amount of $1.00 per name
check.
SUMMARY OF SPENDING FOR PROJECT (INVESTMENT) STAGES
Fiscal year 2008
Fiscal year 2009
Total
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Planning ...............................................................................................................
Acquisition ............................................................................................................
$1,200,000
3,000,000
$0
3,000,000
$1,200,000
6,000,000
Total ..............................................................................................................
4,200,000
3,000,000
7,200,000
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projections were continued work on
pending cases and expected workload
increase from Homeland Security
Presidential Directive (HSPD)—12
requirements.
Projected
Projected costs and workload were
Product/service
volume
used to calculate the proposed fees
provided in the table below. The fees
Electronic (Batch Process) .......
3,471,638
File Review/Analysis (Routine)
1,186,891 shown below include the additional
$1.00 charge previously discussed.
File Review/Analysis
(Expedited) ............................
209,451 Some NNCP name checks (criminal
justice and law enforcement) can not be
These projections were based on
billed to customers, and the revenue
analysis of FY 2005 and FY 2006
estimates provided below are based on
workload volume, along with expected
estimated billable volume. The billable
workload increases for FY 2008.
volume and revenue estimates are based
Significant factors that influenced the
on the following assumptions:
Volumes Used To Calculate the Fee
The unit cost and proposed fees are
based on the following projected
volumes for FY 2008:
• Under the new fee structure, 15% of
name checks processed after the batch
process will be expedited requests. This
is based on an analysis of FY 2006
workload data.
• The revenue estimate assumes that
85% of NNCP requests are billable to
customers. As provided in the
authorizing language, name checks
performed for certain purposes are
exempt from the fee. The cost of the
remaining fee-exempt requests is not
recovered through fees charged for
billable work but is paid from FBI salary
and expense appropriation.
• Unit costs are rounded up to the
next $0.25.
Annual billable
volume
Product/service
Fee
Revenue
Electronic (Batch Process) ........................................................................................................
File Review/Analysis (Routine) ..................................................................................................
File Review/Analysis (Expedited) ..............................................................................................
1,1918,080
1,008,857
178,033
$1.50
29.50
56.00
$2,877,120
29,761,282
9,969,848
Total ....................................................................................................................................
..............................
..............
42,608,250
The following table shows the amount
that each cost category (labor, non-labor,
and overhead/support) contributes to
the fee. The cost of batch processing is
not included in the subtotal unit cost for
File Review/Analysis; however, batch
processing is performed prior to the File
Review/Analysis service and is
Electronic
(batch process)
Cost category/adjustment
included in the proposed fee. This table
also shows the adjustment made for the
expedited fee.
File review/analysis
(routine)
File review/analysis
(expedite)
Labor ............................................................................................
Non-Labor ....................................................................................
Overhead/Support ........................................................................
$0.21
0.04
0.25
$17.33
11.71
2.98
$17.33
11.71
2.98
Subtotal Unit Cost ................................................................
Expedite Amount .........................................................................
0.50
N/A
32.02
($4.05)
32.02
22.27
Adjusted Unit Cost ................................................................
Round up to $0.25 .......................................................................
Batch Processing .........................................................................
Additional Charge ........................................................................
0.50
0.00
N/A
1.00
27.97
0.03
0.50
1.00
54.30
0.21
0.50
1.00
Proposed Fee .......................................................................
1.50
29.50
56.00
As noted above, the FBI established
this proposed fee schedule on an
interim basis, effective October 1, 2007.
The following table shows the amounts
by which the fees were changed. 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). Such users constituted
more than 60 percent of the billable
name checks at that time. 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 the cost for
expediting responses ahead of routine
transactions.
SUMMARY OF FEE CHANGES
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Service
Previous fee
Electronic Submission
Batch Process Only .....................................................................................................................
Batch + File Review .....................................................................................................................
Manual Submission .....................................................................................................................
Expedited Submission .................................................................................................................
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$1.40
10.65
12.00
22.65
26SEP1
Proposed fee
$1.50
29.50
56.00
56.00
Total fee
increase
$0.10
18.85
44.00
33.35
Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Proposed Rules
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.
V. Administrative
Consultations With Interested Federal
Agencies
The FBI has provided information
about this proposed 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 and provide performance
information against the standards. The
FBI will develop plans for management
action in the event the standards agreed
upon are not met, working with
customer agencies. As appropriate, the
FBI may pursue similar arrangements
with its other federal customers.
Effective Date for the New Fees
The proposed rule explains the
methodology used to calculate the FBI
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. This new schedule will be put
into effect 60 days following publication
of the notice
Notice of the New Fee Schedule
Any changes to the Fee Schedule will
be published in the Federal Register.
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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.
This proposed rule does not directly
or indirectly impact any small entity, as
defined by the RFA to include small
businesses, small organizations, and
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18:23 Sep 25, 2008
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small governmental jurisdictions. The
fees for providing name-based checks of
the FBI Central Records System are
imposed upon the Federal agencies
authorized to request these checks,
therefore, there is no direct or indirect
impact on small entities, as 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,
section 3(f), Regulatory Planning and
Review, 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 these name-based checks for
non-criminal justice purposes are
imposed upon the individual subject of
the background check or are absorbed
by the federal agencies submitting the
requests. Therefore, in accordance with
Executive Order 13132, it is determined
that this rule has no federalism
implications and does not 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. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
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55799
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 Code of Federal
Regulations is 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; Public Law 92–
544, 86 Stat. 1115; 42 U.S.C. 3711, et seq.,
Public Law 99–169, 99 Stat. 1002, 1008–
1011, as amended by Public Law 99–569, 100
Stat. 3190, 3196; Public Law 101–515, as
amended by Public Law 104–99, set out in
the notes to 28 U.S.C. 534.
2. Section 20.3 is amended by adding
paragraphs (t) and (u) to read as follows:
§ 20.3
Definitions.
*
*
*
*
*
(t) Central Records System or CRS
encompasses all centralized records of
FBI Headquarters, field offices and Legal
Attache offices. See the CRS Privacy Act
System Notice periodically published in
the Federal Register for further details.
(u) National Name Check Program or
NCP is responsible for disseminating
information from the FBI CRS in
response to requests submitted by
federal agencies.
3. Section 20.30 is revised to read as
follows:
§ 20.30
Applicability.
The provisions of this subpart of the
regulations apply to the III System, the
FIRS, and the CRS, and to duly
authorized local, state, tribal, federal,
foreign, and international criminal
justice agencies to the extent that they
utilize the services of the III System, the
FIRS or the CRS. This subpart is
applicable to both manual and
automated criminal history records.
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55800
Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Proposed Rules
4. Section 20.31 is amended by
adding paragraphs (e) and (f) to read as
follows:
§ 20.31
Responsibilities.
*
*
*
*
*
(e) The FBI may routinely establish
and collect fees for non-criminal justice
identification services as authorized by
federal law. These fees apply to federal,
state and any other authorized entities
requesting 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 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.
(f) The FBI will collect a fee for
providing non-criminal name-based
background checks of the FBI Central
Records System through the National
Name Check Program pursuant to the
authority in Public Law 101–515 and in
accordance with paragraphs (e)(1), (2)
and (3) of this section.
Dated: September 18, 2008.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
[FR Doc. E8–22710 Filed 9–25–08; 8:45 am]
BILLING CODE 4410–02–P
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 56, 57, and 66
RIN 1219–AB41
Alcohol- and Drug-Free Mines: Policy,
Prohibitions, Testing, Training, and
Assistance
Mine Safety and Health
Administration (MSHA), Labor.
AGENCY:
Proposed rule; notice of public
hearing; extension of comment period.
ACTION:
SUMMARY: The Mine Safety and Health
Administration (MSHA) will hold a
public hearing on its proposed rule to
amend the existing metal and nonmetal
standards for the possession and use of
intoxicating beverages and narcotics and
make the new standard applicable to all
mines. The proposed rule would also
require those who violate the
prohibitions to be removed from the
performance of safety-sensitive job
duties until they successfully complete
the recommended treatment and their
alcohol- and drug-free status is
confirmed by a return-to-duty test.
DATES: All comments must be received
by midnight Eastern Daylight Savings
Time on October 29, 2008.
MSHA will hold a public hearing on
October 14, 2008. The SUPPLEMENTARY
INFORMATION section of this notice
includes details of the hearing.
ADDRESSES: Comments must be clearly
identified with ‘‘RIN 1219–AB41’’ and
may be sent by any of the following
methods:
(1)Federal e-Rulemaking Portal: http:
//www.regulations.gov. Follow the
instructions for submitting comments.
(2) Electronic mail: zzMSHAcomments@dol.gov. Include ‘‘RIN 1219–
AB41’’ in the subject line of the
message.
(3) Facsimile: 202–693–9441. Include
‘‘RIN 1219–AB41’’ in the subject line of
the message.
(4) Regular Mail: MSHA, Office of
Standards, Regulations, and Variances,
1100 Wilson Boulevard, Room 2350,
Arlington, Virginia 22209–3939.
(5) Hand Delivery or Courier: MSHA,
Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard,
Room 2350, Arlington, Virginia. Sign in
at the receptionist’s desk on the 21st
floor.
Comments can be accessed
electronically at https://www.msha.gov
under the Rules and Regs link. MSHA
will post all comments on the Internet
without change, including any personal
information provided.
Comments may also be reviewed at
the Office of Standards, Regulations,
and Variances, 1100 Wilson Boulevard,
Room 2350, Arlington, Virginia. Sign in
at the receptionist’s desk on the 21st
floor.
FOR FURTHER INFORMATION CONTACT:
Patricia W. Silvey,
patricia.silvey@dol.gov (E-mail), 202–
693–9440 (Voice).
SUPPLEMENTARY INFORMATION:
I. Background
On September 8, 2008 (73 FR 52136),
MSHA published a proposed rule in the
Federal Register that would amend the
existing metal and nonmetal standards
concerning the use of intoxicating
beverages and narcotics and would
make the new standard applicable to all
mines. The proposed rule would
designate the substances that cannot be
possessed on mine property or used
while performing safety-sensitive job
duties, except when used according to
a valid prescription. Mine operators
would be required to establish an
alcohol- and drug-free mine program,
which includes a written policy,
employee education, supervisory
training, alcohol- and drug-testing for
miners that perform safety-sensitive job
duties and their supervisors, and
referrals for assistance for miners and
supervisors who violate the policy. The
proposed rule would also require those
who violate the prohibitions to be
removed from the performance of safetysensitive job duties until they
successfully complete the recommended
treatment and their alcohol- and drugfree status is confirmed by a return-toduty test.
II. Public Hearing
MSHA will hold a public hearing on
the proposed rule. The public hearing
will begin at 9 a.m. Eastern Daylight
Savings Time (EDST). The public
hearing will be held via Web cast at
three locations. The hearing will end at
5 p.m. EDST, or after the last speaker
speaks. The hearing will be held on the
following date at the locations and times
indicated:
Location
Contact information
October 14, 2008 ....
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Date
Via Webcast: 9 a.m. Eastern Daylight Savings Time ...........
Office of Standards, Regulations and Variances 202–693–
9440.
October 14, 2008 ....
Cisco Washington DC, 1300 Pennsylvania Avenue, NW.,
Suite 250, Washington, DC 20004, POC: Mic Keith 202–
354–2904 (main bldg phone).
Via Webcast: 9 a.m. Eastern Daylight Savings Time ...........
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18:23 Sep 25, 2008
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Office of Standards, Regulations and Variances 202–693–
9440.
E:\FR\FM\26SEP1.SGM
26SEP1
Agencies
[Federal Register Volume 73, Number 188 (Friday, September 26, 2008)]
[Proposed Rules]
[Pages 55794-55800]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22710]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 20
[FBI Docket No. 118]
RIN 1110-AA29
FBI Records Management Division National Name Check Program
Section User Fees
AGENCY: Federal Bureau of Investigation (FBI), Justice.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
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 non-criminal justice purposes including
employment and licensing. The fees may include an amount to establish a
fund to defray expenses for the automation of criminal justice
information services and associated costs. The proposed rule concerns
the name-based checks conducted by the Records Management Division
(RMD) in the National Name Check Program (NNCP).
The rule explains the methodology used to calculate the revised
fees and provides a proposed fee schedule. After public comment, a
final rule and notice of the final fee schedule will be published in
the Federal Register.
DATES: Written comments must be received on or before November 25,
2008.
ADDRESSES: You may submit comments, identified by Docket No. FBI 118,
by either of the following methods:
Federal Regulations Web site: You may review this
regulation on https://www.regulations.gov and use the comment form for
this regulation to submit your comments. You must include Docket No.
FBI 118 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,
Records Management Division, National Name Check Program Section, 1325
G Street, Room G-300, Washington, DC 20005, Attention: Michael A.
Cannon.
To ensure proper handling, please reference Docket No. FBI 118 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: Michael Cannon, FBI, Records
Management Division, National Name Check Program Section, 1325 G
Street, Room G-300, Washington, DC 20005, telephone number (202) 220-
1198.
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 https://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
https://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 purposes of discussion, FBI user fees may be differentiated by
the FBI Division providing the service. The user fees for the National
Name Check Program (NNCP) checks provided by the Records Management
Division (RMD) are the subject of this rulemaking. Fees for the
criminal history record information checks provided by the Criminal
Justice Information Services Division (CJIS) are the subject of a
separate rulemaking (Docket No. FBI 114, RIN 1110-AA26). The separate
CJIS fee rule also proposes to amend 28 CFR 20.31. In the event that
the CJIS fee rule is finalized first, the revisions proposed in this
rulemaking to section 20.31(e) will be conformed with the changes
contained in the CJIS fee rule.
The rulemaking process provides federal governmental agencies and
the public the opportunity to review and comment on the methodology
utilized by the FBI to implement its statutory authority to establish
and collect fees and the proposed fee schedule, and advises that future
fee adjustments will be made by notice published in the Federal
Register. After analysis and response to the comment, a final rule and
notice of the fee schedule will be published in the Federal Register.
This rule will be published at Part 20 of 28 CFR.
FBI's Legal Authority To Collect Fees
The FBI has collected fees for NNCP checks since 1991, under the
authority set out in Public Law 101-162. This law authorized the FBI to
collect fees to process identification records and name checks for non-
criminal justice purposes and to set such 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.
National Name Check Program Services
Under Public Law 101-515, the FBI is authorized to charge a fee for
non-criminal justice name-based checks for such purposes as
immigration, Federal Government employment and security clearance
processes. The FBI does not charge a fee for NNCP services performed
for criminal justice purposes, which are supported by federal
appropriations.
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. As explained below, the NNCP disseminates
information from the FBI's Central Records System (CRS) in response to
requests submitted by
[[Page 55795]]
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 (NAC) in the
background investigation of prospective Government employees. The FBI
performs the primary NAC on all U.S. government employees and provides
information to more than 40 federal agencies based on fiscal year (FY)
2005 data. 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 matter. 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 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 non-criminal justice purposes, the FBI established the
proposed fee schedule on an interim basis, effective October 1, 2007.
That is the same process the FBI has followed in implementing changes
in fees for other non-criminal justice identification services.
Although the proposed rule will establish the user fees by notice and
comment rulemaking, RMD customers were advised of the revised fees
prior to the start of FY 2008, thereby allowing them to prepare for the
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. The proposed rule advises that adjustments
to the FBI's fees will be announced by notice in the Federal Register.
III. Fee Calculation
Cost Accounting 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
this 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 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, 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.
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. Generally accepted standards and regulatory guidance
were followed, as specified by the Federal Accounting Standards
Advisory Board's
[[Page 55796]]
(FASAB) Statement Number 4: Managerial Cost Accounting Concepts and
Standards for the Federal Government and the Office of Management and
Budget's (OMB) Circular A-25: User Charges. 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.
NNCP services and activities performed for name checks
were defined.
Operational labor costs were identified and assigned to
activities and then to services.
Support labor costs were identified and assigned to
activities and then to services.
Non-labor costs, including appropriate overhead and
support costs, were identified and assigned to activities and then to
services.
Cost estimates were made for FY 2008, when the revised
user fees are expected to be implemented.
Transaction volumes and trends were analyzed to predict
appropriate transaction volumes for fiscal year 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
this NPRM. The FBI is therefore proposing to add an automation
surcharge to the NNCP fee pursuant to Public Law 101-515. The estimated
costs for these automation efforts were based on best available
information regarding planned IT 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.
Overview of the Costs Included in the Fee Calculation
The fee calculation was produced by gathering the labor and non-
labor costs of those divisions of the FBI that directly or indirectly
support the provision of the NNCP name check services, and then using
various drivers to assign those costs to the identified activities. The
activities were then assigned to the specific name check service. The
ABC model examined in detail only those costs which were related to the
name check services. These services included both the criminal justice
and law enforcement and the non-criminal justice identification
services performed by the NNCP. The discussion below is limited to
those costs in the ABC model which were assigned to name check services
that are supported by the user fees. In other words, even though the
ABC model calculated unit costs for all NNCP name checks, the costs for
processing criminal justice name checks 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 name check services
include the personnel costs for both direct and indirect support, as
well as non-labor costs such as travel, training, rent, equipment,
utilities, printing, contract support, and supplies. In addition,
depreciation for existing non-automation assets were included per OMB
Circular A-25 guidance. Finally, portions of the FBI 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 financial systems and other relevant information provided by
FBI personnel. The FY 2008 predicted costs were obtained by adding an
inflation factor for labor and other non-labor expenses and identifying
other expected changes in cost. 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
based on capital investment planning for the automation portion of the
fee described below. The costs for the additional charge for automation
were based on the most recent NNCP estimates for planned systems
automation and enhancement.
IV. Revised Fee Schedule
Proposed Changes to the Fee Schedule
The current NNCP fee schedule services are:
Electronic (Batch Processed)
File Review and Analysis
Manual (Paper-Based Request)
Expedite (Paper-Based Request)
FBI proposes a tiered fee structure that maintains the distinction
between requests completed during the automated batch processing and
those that must go on for additional file review and analysis (formerly
referred to as indices popular). However, the recommended fee structure
does maintain a distinction between requests submitted electronically
or on paper. Manual requests represent approximately 3% of name checks
processed, and NNCP is undertaking efforts to encourage customers to
submit all name check requests electronically.
The proposed fee structure is:
Electronic (Batch Processed)
File Review/Analysis (Routine)
File Review/Analysis (Expedited)
While there is not an expedite fee for batch processing (they are
typically completed within a few days), the proposed fee structure does
distinguish between routine processing and expedited processing for
name checks that require additional review and analysis. The FBI
receives some requests for expedited processing of name checks but does
not currently charge an additional fee for the expedited service
(except for a small number of manual requests). Expedited requests
receive priority processing, and the expedited processing fee accounts
for this difference in prioritization by charging the customer
requesting expedited service a higher amount to reflect the
preferential treatment and shorter processing time.
Discussion of Proposed Changes to the Fee Schedule
The fee structure described above was proposed for the following
reasons:
Reflects difference in cost. There is a significant
difference between the unit cost of automated batch processing and file
review and analysis. The recommended fee structure reflects this
difference by charging a separate fee for these two phases of the name
check process.
[[Page 55797]]
Reflects customer choice. The recommended fee structure
has separate fees for routine and expedited processing of name checks.
This reflects a customer choice regarding which level of service to
request.
Move toward all electronic requests. The NNCP intends to
have all name check requests provided by their customers in electronic
format. The NNCP will develop a web interface to allow the customers to
enter the appropriate data into the NNCP system rather than mail a hard
copy request. Therefore, the recommended fee structure does distinguish
between electronic and manual submission of name check requests.
Less administrative burden. The recommended fee structure
has fewer separate services so there are fewer services/fees to bill.
As mentioned previously, customers receiving expedited processing
should be charged a higher fee compared to routine processing.
Customers who receive expedited processing derive additional benefit
because they receive preferential treatment; requests for routine
processing must wait longer because the expedited requests get moved up
in the queue.
The Independent Offices Appropriation Act (IOAA) serves as a
government-wide authority on fee setting in the federal government.
According to the IOAA, a user charge shall be based on:
Costs to the Government
Value of the service or thing to the recipient
Public policy or interest served
Other relevant facts
Regarding the value criterion, requests that receive expedited
processing receive higher value when compared to those that receive
routine processing. The expedited processing fee accounts for this
added value by charging a higher fee because the request receives
preferential treatment and is processed in a shorter period of time.
Consideration was given to the difference in processing time for
routine and expedited requests to calculate the expedite fee. This data
measured the average number of days involved in each type of request
from the date received to the date finalized. This difference in
processing time served as the basis for adjusting the fees for routine
and expedited processing.
Detail of the Costs Used To Calculate the Fee
The costs were calculated based on the cost of providing NNCP name
checks using the ABC model constructed by Grant Thornton. The costs
include labor costs, non-labor costs (including unfunded personnel and
judgment fund costs), automation costs; and general overhead and
support costs. These costs are discussed in more detail below.
The cost structure reflects the type of cost and organizational
structure of the NNCP and other FBI units involved in providing name
check services. The NNCP costs are comprised of the following
categories:
Labor--includes personnel compensation (salary and benefits) for
direct costs.
------------------------------------------------------------------------
Center FY2008
------------------------------------------------------------------------
Name Check Center....................................... $9,982,910
Other Records Management Units.......................... 908,046
Field Office Support.................................... 8,278,415
Information Technology Support.......................... 233,569
Finance Division Support................................ 64,247
Office of General Counsel............................... 2,535,942
Document Scanning Support............................... 2,923,911
---------------
Total............................................... 24,927,040
------------------------------------------------------------------------
Non-labor includes direct and indirect non-labor expense data for
the Name Check and RMD front office, contractor support, and
depreciation.
------------------------------------------------------------------------
Center FY2008
------------------------------------------------------------------------
Name Check/RMD.......................................... $2,226,367
Batch Processing Enhancement............................ 310,000
Contractor Support...................................... 12,318,813
Depreciation/Equipment Replacement...................... 115,965
Document Scanning/Consumables........................... 1,836,257
---------------
Total............................................... 16,807,402
------------------------------------------------------------------------
Bureau overhead/support includes indirect costs to provide joint or
common services to NNCP.
------------------------------------------------------------------------
Center FY2008
------------------------------------------------------------------------
Office of the Chief Information Officer................. $1,579,600
Human Resources......................................... 62,2626
Finance................................................. 85,428
Federal Employees' Compensation Act..................... 49,446
Judgment Fund........................................... 7,005
Security................................................ 445,185
Telecommunications...................................... 196,212
Inspection.............................................. 52,361
Rent.................................................... 2,146,320
Training and Development................................ 11,556
Shipping................................................ 101,264
---------------
Total............................................... 4,736,639
------------------------------------------------------------------------
Additional Charge for Automation
The FBI is authorized by law (Pub. L. 101-515) to charge an
additional amount for each name check to defray expenses for automation
and associated costs. Under this authority, the additional amount may
be placed in a separate account and retained until expended. The
proposed amount of the additional charge is currently estimated to be
$1.00 per name check. The additional amount was calculated by dividing
the estimated two-year total cost of planned Information Technology
(IT) investments by the estimated two-year volume of name check
requests. Current estimates total approximately $7.2 million to be
invested in system enhancements during FY 2008 and FY 2009. The tables
below provide more detailed information on the planned IT investments.
The total is divided by an estimated 2-year volume of 7.15 million name
check requests to arrive at an additional amount of $1.00 per name
check.
Summary of Spending for Project (Investment) Stages
----------------------------------------------------------------------------------------------------------------
Fiscal year 2008 Fiscal year 2009 Total
----------------------------------------------------------------------------------------------------------------
Planning............................................ $1,200,000 $0 $1,200,000
Acquisition......................................... 3,000,000 3,000,000 6,000,000
-----------------------------------------------------------
Total........................................... 4,200,000 3,000,000 7,200,000
----------------------------------------------------------------------------------------------------------------
[[Page 55798]]
Volumes Used To Calculate the Fee
The unit cost and proposed fees are based on the following
projected volumes for FY 2008:
------------------------------------------------------------------------
Projected
Product/service volume
------------------------------------------------------------------------
Electronic (Batch Process)................................. 3,471,638
File Review/Analysis (Routine)............................. 1,186,891
File Review/Analysis (Expedited)........................... 209,451
------------------------------------------------------------------------
These projections were based on analysis of FY 2005 and FY 2006
workload volume, along with expected workload increases for FY 2008.
Significant factors that influenced the projections were continued work
on pending cases and expected workload increase from Homeland Security
Presidential Directive (HSPD)--12 requirements.
Projected costs and workload were used to calculate the proposed
fees provided in the table below. The fees shown below include the
additional $1.00 charge previously discussed. Some NNCP name checks
(criminal justice and law enforcement) can not be billed to customers,
and the revenue estimates provided below are based on estimated
billable volume. The billable volume and revenue estimates are based on
the following assumptions:
Under the new fee structure, 15% of name checks processed
after the batch process will be expedited requests. This is based on an
analysis of FY 2006 workload data.
The revenue estimate assumes that 85% of NNCP requests are
billable to customers. As provided in the authorizing language, name
checks performed for certain purposes are exempt from the fee. The cost
of the remaining fee-exempt requests is not recovered through fees
charged for billable work but is paid from FBI salary and expense
appropriation.
Unit costs are rounded up to the next $0.25.
----------------------------------------------------------------------------------------------------------------
Annual billable
Product/service volume Fee Revenue
----------------------------------------------------------------------------------------------------------------
Electronic (Batch Process)...................................... 1,1918,080 $1.50 $2,877,120
File Review/Analysis (Routine).................................. 1,008,857 29.50 29,761,282
File Review/Analysis (Expedited)................................ 178,033 56.00 9,969,848
-----------------------------------------------
Total....................................................... ................. ........ 42,608,250
----------------------------------------------------------------------------------------------------------------
The following table shows the amount that each cost category
(labor, non-labor, and overhead/support) contributes to the fee. The
cost of batch processing is not included in the subtotal unit cost for
File Review/Analysis; however, batch processing is performed prior to
the File Review/Analysis service and is included in the proposed fee.
This table also shows the adjustment made for the expedited fee.
----------------------------------------------------------------------------------------------------------------
Electronic (batch File review/analysis File review/analysis
Cost category/adjustment process) (routine) (expedite)
----------------------------------------------------------------------------------------------------------------
Labor................................ $0.21 $17.33 $17.33
Non-Labor............................ 0.04 11.71 11.71
Overhead/Support..................... 0.25 2.98 2.98
--------------------------------------------------------------------------
Subtotal Unit Cost............... 0.50 32.02 32.02
Expedite Amount...................... N/A ($4.05) 22.27
--------------------------------------------------------------------------
Adjusted Unit Cost............... 0.50 27.97 54.30
Round up to $0.25.................... 0.00 0.03 0.21
Batch Processing..................... N/A 0.50 0.50
Additional Charge.................... 1.00 1.00 1.00
--------------------------------------------------------------------------
Proposed Fee..................... 1.50 29.50 56.00
----------------------------------------------------------------------------------------------------------------
As noted above, the FBI established this proposed fee schedule on
an interim basis, effective October 1, 2007. The following table shows
the amounts by which the fees were changed. 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). Such users constituted more than 60
percent of the billable name checks at that time. 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 the cost for expediting responses
ahead of routine transactions.
Summary of Fee Changes
----------------------------------------------------------------------------------------------------------------
Total fee
Service Previous fee Proposed fee increase
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
[[Page 55799]]
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.
V. Administrative
Consultations With Interested Federal Agencies
The FBI has provided information about this proposed 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 and
provide performance information against the standards. The FBI will
develop plans for management action in the event the standards agreed
upon are not met, working with customer agencies. As appropriate, the
FBI may pursue similar arrangements with its other federal customers.
Effective Date for the New Fees
The proposed rule explains the methodology used to calculate the
FBI 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.
This new schedule will be put into effect 60 days following publication
of the notice
Notice of the New Fee Schedule
Any changes to the Fee Schedule will be published in the Federal
Register.
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.
This proposed rule does not directly or indirectly impact any small
entity, as defined by the RFA to include small businesses, small
organizations, and small governmental jurisdictions. The fees for
providing name-based checks of the FBI Central Records System are
imposed upon the Federal agencies authorized to request these checks,
therefore, there is no direct or indirect impact on small entities, as
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, section
3(f), Regulatory Planning and Review, 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 these name-based
checks for non-criminal justice purposes are imposed upon the
individual subject of the background check or are absorbed by the
federal agencies submitting the requests. Therefore, in accordance with
Executive Order 13132, it is determined that this rule has no
federalism implications and does not 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. 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 Code of Federal Regulations is 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; Public Law 92-544, 86 Stat. 1115; 42
U.S.C. 3711, et seq., Public Law 99-169, 99 Stat. 1002, 1008-1011,
as amended by Public Law 99-569, 100 Stat. 3190, 3196; Public Law
101-515, as amended by Public Law 104-99, set out in the notes to 28
U.S.C. 534.
2. Section 20.3 is amended by adding paragraphs (t) and (u) to read
as follows:
Sec. 20.3 Definitions.
* * * * *
(t) Central Records System or CRS encompasses all centralized
records of FBI Headquarters, field offices and Legal Attache offices.
See the CRS Privacy Act System Notice periodically published in the
Federal Register for further details.
(u) National Name Check Program or NCP is responsible for
disseminating information from the FBI CRS in response to requests
submitted by federal agencies.
3. Section 20.30 is revised to read as follows:
Sec. 20.30 Applicability.
The provisions of this subpart of the regulations apply to the III
System, the FIRS, and the CRS, and to duly authorized local, state,
tribal, federal, foreign, and international criminal justice agencies
to the extent that they utilize the services of the III System, the
FIRS or the CRS. This subpart is applicable to both manual and
automated criminal history records.
[[Page 55800]]
4. Section 20.31 is amended by adding paragraphs (e) and (f) to
read as follows:
Sec. 20.31 Responsibilities.
* * * * *
(e) The FBI may routinely establish and collect fees for non-
criminal justice identification services as authorized by federal law.
These fees apply to federal, state and any other authorized entities
requesting name checks for non-criminal 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 name checks for non-criminal 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.
(f) The FBI will collect a fee for providing non-criminal name-
based background checks of the FBI Central Records System through the
National Name Check Program pursuant to the authority in Public Law
101-515 and in accordance with paragraphs (e)(1), (2) and (3) of this
section.
Dated: September 18, 2008.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
[FR Doc. E8-22710 Filed 9-25-08; 8:45 am]
BILLING CODE 4410-02-P