FBI Criminal Justice Information Services Division User Fees, 18751-18755 [2010-8385]
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18751
Rules and Regulations
Federal Register
Vol. 75, No. 70
Tuesday, April 13, 2010
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
Procedure Act (5 U.S.C. 553). Notice
and public procedures are unnecessary
because FDA is merely updating
nonsubstantive content.
DEPARTMENT OF JUSTICE
List of Subjects in 21 CFR Part 118
RIN 1110–AA26
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
Eggs and egg products, Incorporation
by reference, Recordkeeping
requirements, Safety.
FBI Criminal Justice Information
Services Division User Fees
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 118 is
amended as follows:
■
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
PART 118—PRODUCTION, STORAGE,
AND TRANSPORTATION OF SHELL
EGGS
21 CFR Part 118
[Docket No. FDA–2000–N–0190]
Prevention of Salmonella Enteritidis in
Shell Eggs During Production,
Storage, and Transportation; Change
of Registration Date, Address, and
Telephone Number; Technical
Amendment
AGENCY:
Food and Drug Administration,
HHS.
SUMMARY: The Food and Drug
Administration (FDA) is amending its
regulations to correct the date by which
producers must register their farm with
FDA, reflect a change in the address and
telephone number for requesting copies
of Form No. 3733, and reflect a change
in the address to which producers must
send their CD–ROM. This action is
editorial in nature and is intended to
improve the accuracy of the agency’s
regulations.
Effective on April 13, 2010.
John
Sheehan, Center for Food Safety and
Applied Nutrition (HFS–315), Food and
Drug Administration, 5100 Paint Branch
Pkwy., College Park, MD 20740, 301–
436–1488.
SUPPLEMENTARY INFORMATION: FDA is
amending its regulations in 21 CFR part
118 to correct the following information:
(1) The date by which egg producers
must register their farm with FDA, (2)
the address and telephone number for
requesting copies of Form 3733, and (3)
the address to which egg producers
must send their CD–ROM. Publication
of this document constitutes final action
on this change under the Administrative
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FOR FURTHER INFORMATION CONTACT:
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14:59 Apr 12, 2010
Authority: 21 U.S.C. 321, 331–334, 342,
371, 381, 393; 42 U.S.C. 243, 264, 271.
2. In § 118.11, revise paragraphs (a),
(b)(2)(i), and (b)(3)(vi) to read as follows:
■
§ 118.11 Registration requirements for
shell egg producers covered by the
requirements of this part.
Final rule; technical
amendment.
ACTION:
DATES:
1. The authority citation for 21 CFR
part 118 continues to read as follows:
■
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(a) Shell egg producers covered under
§ 118.1(a) are required to register their
farms with FDA within 30 days of
becoming an egg producer or, if already
an egg producer, by each farm’s
applicable compliance date.
(b) * * *
(2) * * *
(i) You must register using FDA Form
No. 3733. You may obtain a copy of this
form by writing to the U.S. Food and
Drug Administration, 5600 Fishers Lane
(HFS–681), Rockville, MD 20857, or by
requesting the form by phone at 1–800–
216–7331 or 301–575–0156.
*
*
*
*
*
(3) * * *
(vi) You must mail the CD–ROM to
the U.S. Food and Drug Administration,
5600 Fishers Lane (HFS–681), Rockville,
MD 20857.
*
*
*
*
*
Dated: April 7, 2010.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2010–8358 Filed 4–12–10; 8:45 am]
BILLING CODE 4160–01–S
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28 CFR Part 20
[Docket No. FBI 114]
AGENCY: Federal Bureau of Investigation
(FBI), Justice.
ACTION: Final rule.
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.
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Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
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 fingerprintbased 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.’’
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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.
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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
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methodology in six steps for the nonautomation portion of the fee.
1. Operational labor costs were
reviewed and assigned to activities and
then to services.
2. Support labor costs were reviewed
and assigned to activities and then to
services.
3. Nonlabor costs, including
unfunded personnel and judgment fund
costs, were reviewed and assigned to
activities and then to services.
4. Cost estimates were made for FY
2008, when the revised user fees are
expected to be implemented.
5. Transaction volumes and trends
were analyzed to predict appropriate
transaction volumes for FY 2008.
6. Finally, using the projected FY
2008 costs and the projected FY 2008
transaction volumes, the projected unit
costs for each service were calculated.
The recommended user fees were based
on these projected unit costs.
As explained above, under Public
Law 101–515, the FBI is also authorized
to charge an additional amount for the
automation of fingerprint identification
and criminal justice information
services and associated costs. A similar
process was used to develop this
portion of the fee. It was determined
that the most appropriate basis for the
calculation of this portion of the fee was
the capital investment and anticipated
depreciation costs for automated
fingerprint identification and other
criminal justice information service
capabilities and enhancements to
certain automated systems. The costs for
these automation efforts were obtained
from the FBI’s asset management and
financial management systems and
records, and program planning
documentation. By employing this
methodology, users paying the fee will
pay for services based on the cost of the
automation which is already in place at
the time their request is processed.
While the funds collected will be used
to develop future capabilities, the cost
basis of the fee will be the automation
in place. The projected FY 2008
volumes were then used to calculate the
unit costs for this portion of the fee.
Once the unit costs were calculated,
BearingPoint generated the revised fee
schedule. The FBI then independently
reviewed the BearingPoint
recommendations, compared them to
current fee calculations and plans for
future services, and determined that the
revised schedules were both objectively
reasonable and in consonance with the
underlying legal authorities.
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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 namebased 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 fingerprintbased 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 feesupported fingerprint-based and namebased 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.
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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-
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18753
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 fingerprintbased 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 fingerprintbased 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 namebased 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).
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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.
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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.
Small entities are defined by the RFA to
include small businesses, small
organizations, and small governmental
jurisdictions.
The fees for providing fingerprintbased 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.
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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 namebased 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 namebased 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
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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.
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
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.
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2. Amend § 20.31 to add paragraph (e)
to read as follows:
■
§ 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.
[FR Doc. 2010–8385 Filed 4–12–10; 8:45 am]
BILLING CODE 4410–02–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2009–0317]
RIN 1625–AA87
Security Zone; Calcasieu River and
Ship Channel, LA
Coast Guard, DHS.
Final rule.
AGENCY:
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SUMMARY: The Coast Guard is
disestablishing the permanent safety
zone at Trunkline LNG in Lake Charles,
LA and replacing it with a security zone
with new boundaries. The Coast Guard
is also establishing two additional
permanent security zones on the waters
of the Calcasieu River for the mooring
basins at Cameron LNG in Hackberry,
LA and PPG Industries in Lake Charles,
LA. The Coast Guard is also
disestablishing the Calcasieu River ship
channel moving safety zone and
replacing it with a moving security
VerDate Nov<24>2008
14:59 Apr 12, 2010
Jkt 220001
Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–2009–0317 and are
available online by going to https://
www.regulations.gov, inserting USCG–
2009–0317 in the ‘‘Keyword’’ box, and
then clicking ‘‘Search.’’ This material is
also available for inspection or copying
at the Docket Management Facility (M–
30), U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
e-mail Mr. Scott Whalen, Marine Safety
Unit Port Arthur, TX, telephone (409)
719–5086, or e-mail
scott.k.whalen@uscg.mil. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Dated: March 15, 2010.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
ACTION:
zone. The revised moving security zone
extends channel edge to channel edge
on the Calcasieu Channel and shoreline
to shoreline on the Calcasieu River, 2
miles ahead and 1 mile astern of certain
designated vessels while in transit on
the Calcasieu Channel or Calcasieu
River. Meeting, crossing or overtaking
situations are not permitted within the
security zone unless specifically
authorized by the Captain of the Port.
The moving security zone may
commence at any point while certain
vessels are transiting the Calcasieu
Channel or Calcasieu River on U.S.
territorial waters (12 nautical miles) in
the Captain of the Port (COTP) Port
Arthur zone. These security zones are
needed to protect vessels, waterfront
facilities, the public, and other
surrounding areas from destruction,
loss, or injury caused by sabotage,
subversive acts, accidents, or other
actions of a similar nature. Unless
exempted under this rule, entry into or
movement within these security zones
is prohibited without permission from
the Captain of the Port or a designated
representative.
DATES: This rule is effective May 13,
2010.
Regulatory Information
On September 8, 2009, we published
a notice of proposed rulemaking
(NPRM) entitled ‘‘Security Zone;
Calcasieu River and Ship Channel, LA’’
in the Federal Register (74 FR 46040).
We received 2 comments on the
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
18755
proposed rule. No public meeting was
requested and none was held.
Background and Purpose
Heightened awareness of potential
terrorist acts requires enhanced security
of our ports, harbors, and vessels.
This rule establishes new, distinct
security zones on the waters of the
Calcasieu River. These zones will
protect waterfront facilities, persons,
and vessels from subversive or terrorist
acts. This rule also eliminates the
moving safety zone for non-gas free
LNGs transiting the Calcasieu Channel
and Calcasieu River and adds a distinct
moving security zone that may
commence at any point while certain
vessels are transiting the Calcasieu
Channel or Calcasieu River on U.S.
territorial waters in the Captain of the
Port, Port Arthur zone. Due to the
potential for terrorist attacks, this rule
allows the Captain of the Port to create
moving security zones around certain
vessels as deemed necessary, on a caseby-case basis. By limiting access to these
areas, the Coast Guard is reducing
potential methods of attack on these
vessels, and potential use of the vessels
to launch attacks on waterfront facilities
and adjacent population centers located
within the Captain of the Port zone.
Vessels having a need to enter these
security zones must obtain express
permission from the Captain of the Port,
Port Arthur or a designated
representative prior to entry.
These zones are in an area
concentrated with commercial facilities
considered critical to national security.
This rule does not restrict access to
vessels engaged, or assisting in
commerce with waterfront facilities
within fixed security zones, vessels
operated by port authorities, vessels
operated by waterfront facilities within
the fixed security zones, and vessels
operated by federal, state, county or
municipal agencies. By limiting access
to these areas the Coast Guard is
reducing potential methods of attack on
vessels, waterfront facilities, and
adjacent population centers located
within the zones. Vessels not exempted
under the provisions of this regulation
and desiring to enter these zones are
required to obtain permission from the
Captain of the Port, Port Arthur or a
designated representative prior to entry.
Discussion of Comments and Changes
The Coast Guard received two
comments concerning the NPRM. One
commenter recommended that the
boundaries of the proposed security
zone at PPG Industries (PPG) be
extended to include the transfer dock
located at the southern end of PPG
E:\FR\FM\13APR1.SGM
13APR1
Agencies
[Federal Register Volume 75, Number 70 (Tuesday, April 13, 2010)]
[Rules and Regulations]
[Pages 18751-18755]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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]
BILLING CODE 4410-02-P