FBI Authority to Charge User Fees for Record Check Services

T he Federal Bureau o f Investigation has authority to charge the Departm ent o f State user fees 

for FBI record check services used by the State D epartm ent to determ ine w hether visa 

applicants have crim inal records and are thus ineligible for visas.

T he im position o f user fees by the FB I for record check services is discretionary.

February 11, 1991

M e m o r a n d u m Op i n i o n f o r t h e a s s i s t a n t Di r e c t o r

F e d e r a l B u r e a u o f In v e s t i g a t i o n

This memorandum responds to your request for our opinion whether the 

Appropriations Act for the Departments of Commerce, Justice, and State, 

the Judiciary and Related Agencies for Fiscal Year 1990 (“the FY 1990 CJS 

Act”) authorizes the Federal Bureau of Investigation (“FBI”) to charge the 

Department of State user fees for FBI fingerprint identification and name 

check services (“record check services”) provided to the State Department 

in connection with its review of visa applications. We conclude that the Act 

authorizes the FBI to establish and collect fees for record check services 

that are requested for, among other things, “non-criminal justice” purposes. 

Because the State Department’s requests for such visa-related record checks 

are for a “non-criminal justice” purpose, the FBI may charge the State Department a user fee for record check services provided in response to such 

requests. We also conclude that the imposition of user fees by the FBI for 

record check services is discretionary.

I.

The FY 1990 CJS Act authorized the FBI to “establish and collect fees to 

process fingerprint identification records and name checks for non-criminal 

justice, non-law enforcement employment and licensing purposes.” Pub. L. 

No. 101-162, 103 Stat. 988, 998-99 (1989) (the “user fee provision”). Based 

upon this authority, the FBI notified all federal agencies that use record 

check services that it would charge user fees for all such services that are 

not specifically for criminal justice or law enforcement purposes. Letter to 

All Federal Users of FBI Identification Division Services, from Assistant 

Director in Charge, Identification Division, FBI, at 1 (Dec. 8, 1989). The 

State Department subsequently asked the FBI to confirm that user fees would

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not be charged for any visa-related record check services, asserting that “[t]he 

purpose of such namechecks is to avoid issuance of visas to persons who are 

excludable from the United States by law; they are, therefore, inextricably 

intertwined with the enforcement and administration of the criminal and immigration laws of the United States.” Letter to William S. Sessions, Director, 

FBI, from Elizabeth M. Tamposi, Assistant Secretary for Consular Affairs, 

State Department, at 1 (Feb. 2, 1990).

In responding to the State Department’s request, the FBI distinguished 

between two types of record checks of interest to the State Department. See

Letter to Elizabeth M. Tamposi, from William S. Sessions (Mar. 26, 1990). 

The FBI explained that record checks ordered by the FBI’s Intelligence or 

Criminal Investigative Divisions based upon requests submitted by the State 

Department are considered to be “primary source information in support of 

the [intelligence and [c]ounterterrorism missions of the FBI’s national security responsibilities,” and consequently no user fee would be charged for 

such requests. Id. at 2-3. However, the FBI stated that other record checks 

requested by the State Department in connection with visa applications would 

be subject to a user fee because they are not “used in support of the FBI’s 

intelligence and counterterrorism, or even criminal investigative mission responsibilities.” Id. at 3.

The FBI and the State Department attempted to resolve their differences 

over the FBI’s authority to charge user fees for visa-related record checks. 

That attempt was unsuccessful, and the FBI subsequently requested the opinion of this Office on the scope of the FBI’s authority to charge user fees 

under the FY 1990 CJS Act.

II.

The FY 1990 CJS Act, as noted above, authorizes the FBI to establish and 

collect user fees for record check services provided “for non-criminal justice, 

non-law enforcement employment and licensing purposes.” 103 Stat. at 998- 

99. The State Department asserts that this language, by its terms, authorizes 

fees only for services provided for “employment and licensing purposes.” 

See Letter to Joseph R. Davis, Assistant Director, Legal Counsel, FBI, from 

Alan Kreczko, Deputy Legal Adviser, Department of State, at 2 (May 24, 

1990) (“Kreczko Letter”). Under this reading, the terms “non-criminal justice” and “non-law enforcement” are construed as coordinate adjectives that 

together modify the word “employment."1 The FBI, by contrast, argues that 

the user fee provision must be read as a series of three adjectives, each of

' Alternatively, these two terms might be considered as modifying the entire phrase “employment and 

licensing purposes," so that the provision would be read as covering both non-criminal justice, non-law 

enforcement employment purposes and non-criminal justice, non-law enforcement licensing purposes. 

The State Department has not taken a clear position as to whether, under its reading of the provision, 

these two terms modify both “employment” and “licensing” or just “employment." In any event, it is 

clear that the State Department’s use of FBI record check services is not for an employment or a licensing purpose.

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which modifies the word “purposes.” Thus read, the user fee provision authorizes the FBI to impose fees for record check services provided for any of 

three purposes: a “non-criminal justice” purpose, a “non-law enforcement 

employment” purpose, or a “licensing” purpose. See Letter to Alan Kreczko, 

from Joseph R. Davis, at 2 (May 2, 1990) (“Davis Letter”).

Applying ordinary rules o f English grammar, syntax and usage, we conclude that the phrase “non-criminal justice, non-law enforcement employment 

and licensing purposes” is susceptible of either of two permissible constructions. On the one hand, it would be consistent with ordinary usage to read 

the terms “non-criminal justice” and “non-law enforcement” as coordinate 

adjectives that both modify the word “employment.” The use of a comma 

rather than the word “and” between these two terms does not defeat this 

construction; it is well established that coordinate adjectives may properly 

be separated by commas. See, e.g., The Chicago Manual o f Style § 5.45, at

142 (13th ed. 1982) (giving as an example “a faithful, sincere friend”); 

Government Printing Office (“GPO”), Style Manual § 8.38, at 121 (1984) 

(“short, swift streams”).

On the other hand, it would also be consistent with ordinary usage to 

construe the user fee provision as comprising a series of three terms (“noncriminal justice,” “non-law enforcement employment” and “licensing”), each 

of which modifies the word “purposes.” The absence of a comma after the 

word “employment” does not imply that the provision may not be read as a 

list of three items. Although grammarians appear to be divided on the strict 

propriety of omitting the comma before the word “and” in a list of three or 

more items, see, e.g., The Chicago Manual of Style § 5.50, at 143 (final 

comma should always be used); GPO, Style Manual § 8.43, at 122 (same); 

see generally R. Copperud, American Usage and Style 78-79 (1980) (“Opinion is divided on whether the comma should be used before ‘and’ in a series 

. . . .”), it is nonetheless consistent with ordinary English usage to leave out 

the final, or “serial,” comma. See, e.g., L. Todd & I. Hancock, International

English Usage 389 (1987) (comma is used “with words or phrases in a 

series but not before ‘and’”); see also The World Almanac Guide to Good

Word Usage 52 (M. Manser & J. McQuain eds. 1989) (“the final comma 

preceding ‘and’ or ‘or’ is optional”). At any rate, whatever the views of 

grammarians, it is clear that Congress regards it as acceptable to leave out 

the serial comma. In the very same section that enacts the user fee provision, Congress omitted the final comma in a context where it clearly intended 

that the enumerated activities comprise a series of four activities. See 103 

Stat. at 998 (appropriating funds to the FBI for expenses for “acquisition, lease, 

maintenance and operation of aircraft”).2 Accordingly, the FBI’s construction 

of the user fee provision is consistent both with ordinary English usage and, 

more importantly, with congressional usage.

2 Indeed, Congress does not appear to follow consistently any particular rule with respect to the use of 

the serial comma. In another list of item s in the same section, Congress did use a serial comma. 103 

Stat. at 998 (appropriating funds necessary for “detection, investigation, and prosecution o f crimes”).

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The State Department argues that the FBI’s construction of the user fee 

provision renders part of the provision superfluous and that therefore the 

State Department’s construction is syntactically preferable. Kreczko Letter, 

at 2. We disagree. While “non-criminal justice” purposes, “non-law enforcement employment” purposes and “licensing” purposes are overlapping 

categories, none of them is completely subsumed within the other two. For 

example, there are “licensing” purposes that are related to criminal justice 

and thus not within the “non-criminal justice” category (e.g., a firearms 

license for a court bailiff). Similarly, there are “non-law enforcement employment” purposes that are related to criminal justice (e.g., hiring of a 

public defender). Accordingly, we cannot conclude that the FBI’s construction renders any portion of the user fee provision superfluous.3

Because both the construction suggested by the State Department and the 

one offered by the FBI are grammatically permissible readings of the statutory language, the user fee provision is ambiguous. The legislative history, 

however, establishes that the FBI’s construction is the only one that fulfills 

Congress’ intent in enacting the provision.

The legislative history establishes that the user fee provision in the FY

1990 CJS Act was intended to effect a significant expansion in the authority 

of the FBI to charge user fees for record check services. Prior appropriations acts had provided the FBI only limited authority to institute a user fee 

program. Since 1982, appropriations acts for the Department of Justice 

included language authorizing the FBI to charge fees only for fingerprint 

identification record checks requested for “noncriminal employment and licensing purposes.” Pub. L. No. 97- 257, 96 Stat. 818, 823 (1982); see also,

e.g.. Pub. L. No. 100- 459, 102 Stat. 2186, 2195 (1988) (appropriations act 

for fiscal year 1989). By its terms, this statutory language permitted the FBI 

to charge user fees only for fingerprint identification record checks and then 

only if requested for “employment” purposes or “licensing” purposes.

In the FY 1990 CJS Act, Congress deleted this earlier, narrow formulation of the FBI’s user fee authority in favor of the current language. The 

report submitted by the Senate Appropriations Committee, which added the 

new language, explained that the change was intended to expand significantly the FBI’s authority to charge user fees for record check services:

The expanded authority would permit the FBI to institute a 

user fee for processing of all requests fo r other than law enfo rcem en t p u rp o ses, including those for other Federal

3 At any rate, the FBI’s reading is no more redundant than that suggested by the State Department. 

Because the terms “non- criminal justice" and “ non-law enforcement" substantially overlap, construing 

both words as simultaneously modifying the term “employment” renders the second adjective largely 

redundant.

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Government agencies. The costs to the FBI of providing name 

check and fingerprint identification services for nonlaw enforcement purposes are considerable and have begun to negatively 

impact on its basic law enforcement mission. The Committee 

recognizes the value of these services to other Federal users, 

however, and believes it is important that the FBI continue to 

make them available, although on a reimbursable basis.

S. Rep. No. 144, 101st Cong., 1st Sess. 46 (1989) (emphasis added). The 

Senate Committee thus recognized that the increasing cost of record check 

services “for nonlaw enforcement purposes” was having an adverse effect on 

the FBI’s overall budget and, consequently, on its ability to perform “its 

basic law enforcement mission.” It therefore expanded the FBI’s authority 

so as to permit the collection of user fees for all record check requests “for 

other than law enforcement purposes,” rather than just the employment and 

licensing purposes previously authorized. Id.

The FBI’s construction of the user fee provision is the only reading that 

gives effect to this unmistakable congressional intent to expand the FBI’s 

authority to charge user fees for all record check services “for other than 

law enforcement purposes.” Under the FBI’s reading of the provision, the 

FBI is authorized to charge a user fee for any record check that is requested 

for, among other things, a “non-criminal justice” purpose. Because there is 

a substantial overlap between the term “non-law enforcement,” which is 

used in the Senate Report, and the statutory term “non-criminal justice,” the 

FBI’s construction substantially effectuates the congressional intent that the 

FBI have the authority to collect user fees for record checks performed for 

all “non-law enforcement” purposes.

By contrast, the State Department’s construction fails to expand the range 

of purposes for which a record check request would be subject to the FBI’s 

user fee authority. Under the State Department’s reading, Congress simply 

substituted a new set of adjectives to describe the type of employment purposes for which the FBI could charge a user fee: the coordinate adjectives 

“non-criminal justice, non-law enforcement” were substituted for the earlier 

adjective “noncriminal.” The State Department has not pointed to any evidence in the legislative history — and we have been unable to find any 

evidence — that Congress intended to limit the FBI’s expanded user fee 

authority to employment and licensing purposes. On the contrary, this reading of the provision fails to carry out Congress’ explicit intent to expand the 

FBI’s authority so that it would cover “all requests for other than law enforcement purposes.” S. Rep. No. 144, supra, at 46. Indeed, the State 

Department’s reading may actually contract the FBI’s authority in this regard. To the extent that the two new adjectives do not completely overlap in 

meaning, the set of employment purposes that are both “non-criminal justice” 

and “non-law enforcement” is necessarily smaller than the comparatively

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broad set of “noncriminal” employment purposes.4

The State Department argues that the FBI’s conclusion that it may charge 

a user fee for record checks conducted for “non-criminal justice” purposes is, 

on its face, inconsistent with the Senate Report’s statement that the provision 

“would permit the FBI to institute a user fee for processing of all requests for 

other than law enforcement purposes.” S. Rep. No. 144, supra, at 46 (emphasis added); Kreczko Letter, at 3. In essence, the State Department contends 

that the FBI’s reading places primary emphasis on the wrong statutory term. 

We find this argument unpersuasive. Under any reading of the user fee 

provision, the term “non-law enforcement” modifies the word “employment”; 

therefore, there is no sense in which the statutory language can be read to 

align precisely with the description in the Senate Report. Under these circumstances, our task is to determine which of the facially permissible 

constructions of the statutory text best fulfills the congressional purpose. As 

explained above, “non-criminal justice” is sufficiently close in meaning to 

“non-law enforcement” that the FBI’s reading effectuates Congress’ intent. 

Indeed, the FBI’s reading is the only construction that fulfills that intent.5

Accordingly, we conclude that the FY 1990 CJS Act must be construed to 

authorize the FBI to impose a user fee for any record check services performed for a “non-criminal justice” purpose, a “non-law enforcement 

employment” purpose or a “licensing” purpose.

III.

The State Department asserts that the record check requests it submits to 

the FBI “have no other purpose than to support a law enforcement objective” and that they are therefore not subject to a user fee. Kreczko Letter, at

4 B oth the State D epartm ent and the FBI assert that their respective constructions are supported by the 

statem ent in the Senate Report that the new user fee provision was intended to give the FBI authority to 

charge fees for record checks perform ed for “all civil, nonlaw enforcem ent em ploym ent and licensing 

purposes." S. Rep. No. 144, supra, at 45 See Kreczko Letter, at 3; Davis Letter, at 3. A lthough we 

believe that this language helps to clarify the m eaning o f the term “non- crim inal ju stice,” see infra p. 24, 

w e do not believe that it assists in determ ining which o f the two constructions is the correct one, because 

the passage includes precisely the same gram m atical am biguity as the statutory language

5 Although the State D epartm ent's reading fails to give effect to C ongress’ intent that FBI have the 

authority to charge a user fee for all record checks conducted for non-law enforcem ent purposes, S. Rep. 

N o. 144, supra, at 46, both constructions o f the provision would expand the F B I’s user fee authority in 

three other respects intended by Congress. First, the Senate Report m akes clear that, in m aking these 

changes to the user fee provision. Congress intended that the provision would be given its full literal 

scope and therefore that the FBI was authorized to collect user fees from other federal agencies. Id. at 

45-46. D espite the broad terms o f the 1982 provision, the FBI had not collected user fees from federal 

agencies betw een 1982 and 1989 Second, the new language also authorized the FBI to charge user fees 

in connection with “name checks” o f crim inal records in addition to “fingerprint identification" record 

checks. Compare Pub. L. No. 101 -162, 103 Stat. at 999 with Pub. L No. 97-257, 96 Stat. at 823. T hird, 

the new provision also allow ed the FBI to charge a user fee for record checks perform ed “for certain 

em ployees of private sector contractors with classified G overnm ent contracts." Pub. L. No 101-162. 

103 Stat at 999. Either reading o f the provision would effectuate the congressional purpose on these 

three points, but only the FB I's construction fulfills C ongress’ intent that the FBI have the authority to 

collect user fees fo r all record checks conducted fo r non-law enforcement purposes.

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2. It says that its only purpose in submitting name checks in connection with 

visa applications is “to avoid issuance of visas to persons who are excludable 

from the United States by law.” Id. Because “[s]ections 212(a)(9), (10), and 

(23) of the [Immigration and Nationality Act (“INA”)] forbid the issuance of 

visas to aliens who have criminal records,” the State Department argues, its 

record check requests are submitted for the purpose of enforcing the law and 

therefore should not be subject to a user fee. Id.', see also Letter for Paul P. 

Colbom, Senior Counsel, Office of Legal Counsel, from Alan Kreczko, at 1 

(Aug. 31, 1990) (“the sole and exclusive justification for the namecheck/ 

fingerprint function in the first instance is a criminal justice, law enforcement 

one, i.e., the detection and exclusion of criminal aliens from the United States 

in accordance with Congress’ intent in the relevant exclusionary provisions 

of the [INA]”).

We conclude, however, that the State Department’s requests for record 

checks in connection with visa applications are for a “non-criminal justice” 

purpose. In ordinary usage, the term “criminal justice” refers to the administration and enforcement o f the criminal law. See, e.g., Webster’s Third

New International Dictionary 1228 (1986) (defining “justice” as the “administration of law”). Accordingly, a “non-criminal justice” purpose is a 

purpose that is not related to the administration of criminal laws. The Senate Report confirms this understanding of “non-criminal justice” purposes 

by generally equating them with “civil” purposes. See note 4 supra. The 

State Department’s requests for visa-related record checks relate not to the 

administration of criminal laws, but to the administration of certain civil 

provisions of the INA. The State Department does not request record checks 

for visa applicants for the purpose of investigating whether those applicants 

have violated the criminal laws of the United States and should be arrested 

or prosecuted, but rather to determine whether a visa applicant already has a 

criminal record that would require his or her exclusion from the United 

States. See 8 U.S.C. § 1182(a)(9), (10), (23) (listing classes of aliens with 

criminal records who “shall be ineligible to receive visas and shall be excluded from admission into the United States”). Indeed, a decision by the 

State Department to deny a visa does not involve any criminal penalty. See

id. § 1201. In short, the State Department’s role under the INA does not 

include criminal justice responsibilities, but rather the administration of a 

civil program.6

6 The State Department also argues that, even if these record checks are not requested for “criminal 

justice” purposes, they are nonetheless for “law enforcement” purposes and for this reason should be 

exem pt from user fees. It is not clear from the statutory text whether the term “law enforcement" is 

meant to embrace just the enforcement o f criminal laws — which we believe to be the more conventional use of the term — or whether it is also intended to include the enforcement of civil laws. As noted 

above, however, the Senate Report is clear that this term is being used in the narrower sense of criminal 

law enforcement. See S. Rep. No. 144, supra, at 45 (user fees generally authorized for record checks 

requested for "civil" purposes). The State Department's argument ultimately fails in any event because 

the term “non-law enforcement," as used in the user fee provision, modifies the word “employment.” 

There is, of course, no suggestion that the State Department's review of visa applications is in any way 

associated with potential employment of aliens by agencies that conduct law enforcement, whether it be 

civil or criminal.

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The State Department’s purpose in requesting a record check of a visa 

applicant is, therefore, a civil, rather than a criminal justice, purpose.7 Because the record check services that the FBI provides the State Department in 

connection with visa applications serve a “non-criminal justice” purpose, we 

conclude that the FBI is authorized to charge user fees for such services.8

IV.

The FBI has also asked whether, if it has such authority, it is required to 

charge the State Department for these services. This question is resolved by 

the language of the user fee provision, which states that “the Director of the 

[FBI] may establish and collect fees to process fingerprint identification 

records and name checks for non-criminal justice, non-law enforcement employment and licensing purposes.” 103 Stat. at 998-99 (emphasis added). 

In using the permissive “may,” rather than the mandatory “shall,” Congress 

clearly authorized, but did not require, the FBI to charge user fees.9

CONCLUSION

We conclude for the reasons stated that the FY 1990 CJS Act authorizes 

the Federal Bureau of Investigation to charge the Department of State user 

fees for FBI record check services used by the State Department to determine whether visa applicants have criminal records and are thus ineligible for 

visas. We also conclude that the FBI’s exercise of this authority is discretionary.

J. MICHAEL LUTTIG 

Assistant Attorney General

Office of Legal Counsel

7We agree with both the FBI and the State Department that record checks ordered by the FBI’s Intelligence or Criminal Investigative Divisions, based upon requests submitted by the State Department, are 

conducted for a criminal justice purpose and thus are not subject to a user fee.

8 In light of this conclusion, we do not address the FBI’s argument that the Economy Act, 31 U.S.C. § 

1535, is available as a separate and independent source of authority. Nor do we consider the FB I’s 

authority to charge user fees to any other particular federal agency, because to do so would require 

examination of the particular purposes for which the services would be provided. We note, however, 

that the analytical framework used in this opinion will generally be applicable in the context of record 

check services provided by the FBI to other federal agencies. We also note that the conclusions and 

analysis in this opinion remain applicable for the current fiscal year because the user fee provision in 

the FY 1990 CJS Act has been reenacted verbatim in the fiscal year 1991 appropriations legislation for 

the FBI See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub. L. No. 101-515, !04Stal. 2101,2112(1990).

’ The provision of record check services to the State Department for visa-related purposes does not 

implicate the rule prohibiting augmentations of agency appropriations that are not authorized by law. 

See generally United States General Accounting Office, Office o f General Counsel, Principles o f Federal Appropriations Law, at 5-62 through 5-93 (1982). In granting the FBI discretionary authority to 

impose user fees. Congress has expressly authorized any resulting augmentation in the appropriations 

of either the FBI or any agency to which it provides record check services.

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