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[Federal Register: May 6, 2010 (Volume 75, Number 87)]
[Rules and Regulations]               
[Page 24796-24799]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my10-5]                         

[[Page 24796]]

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DEPARTMENT OF JUSTICE

28 CFR Part 20

[Docket No. FBI 118]
RIN 1110-AA29

 
 FBI Records Management Division National Name Check Program 
Section User Fees

AGENCY: Federal Bureau of Investigation (FBI), Justice.

ACTION: Final rule.

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SUMMARY:  This Final Rule sets out the Director of the FBI's authority 
to establish and collect fees for providing name-based background 
checks conducted by the National Name Check Program (NNCP) of the 
Records Management Division (RMD). The rule explains the methodology 
used to calculate the fees and provides that future fee adjustments 
will be made by notice published in the Federal Register.

DATES:  This rule is effective June 7, 2010.

FOR FURTHER INFORMATION CONTACT: FBI, Records Management Division, 
National Name Check Program Section, 170 Marcel Drive, Winchester, VA 
22602, Attention: Michael Cannon.

SUPPLEMENTARY INFORMATION: 

I. Background

    On September 26, 2008, the FBI published a Notice of Proposed 
Rulemaking (NPRM) setting forth the FBI's statutory authority to 
establish and collect fees for named-based NNCP checks and other 
identification services performed by the RMD. See 73 FR 55,794 (2008) 
(to be codified at 28 CFR part 20). The FBI's user fees are 
differentiated by the FBI Division providing the service. The user fees 
for the NNCP checks provided by the RMD are the subject of this 
rulemaking. Fees for the criminal history record information checks 
provided by the Criminal Justice Information Services Division (CJIS) 
were the subject of a separate rulemaking and associated notice 
published in the Federal Register on April 13, 2010 at 75 FR 18751 and 
18887. Because the FBI was uncertain which rule would be finalized 
first, both the CJIS fee NPRM and the NNCP fee NPRM proposed to amend 
28 CFR 20.31 by adding an identical paragraph (e). The NNCP fee NPRM 
also proposed to add a new paragraph (f) regarding the collection of 
fees for named-based background checks. Because paragraph (e) already 
has been added to section 20.31 by the CJIS fee final rule, the NNCP 
final rule has been conformed by adding only the new paragraph (f) to 
section 20.31.
    The NPRM regarding the NNCP checks explained the methodology used 
to calculate the fees, provided a proposed fee schedule and explained 
that the fees may include an amount to establish a fund to defray 
expenses for the automation of fingerprint identification and criminal 
justice information services and associated costs. The NPRM further 
advised that the current fees would be published concurrently with this 
final rule as a notice in the Federal Register. This final rule 
implements the FBI's statutory fee authority. All future fee 
adjustments will be made by notice published in the Federal Register.

II. Legal Authority to Collect Fees

    The FBI has collected fees for the NNCP since 1991, when the 
authority to establish and collect fees to process name-based CHRI 
checks, was set out in Public Law (Pub. L.) 101-515. This statutory 
authority was renewed annually by subsequent appropriations 
legislation. Under Public Law 101-162, the FBI also was authorized to 
establish and collect fees for name-based checks and to set the fees at 
a level to include an amount to defray expenses for the automation of 
fingerprint identification and associated costs. Congress, in Public 
Law 101-515, subsequently authorized the FBI to establish and collect 
these fees on a continuing basis. This authority was further expanded 
by Public Law 104-99 with insertion of the term ``criminal justice 
information services'' so the FBI was authorized to use the collected 
fees to ``defray expenses for the automation of fingerprint 
identification and criminal justice information services and associated 
costs.'' The FBI does not charge a fee for NNCP services performed for 
criminal justice purposes, as those services are supported by federal 
appropriations.

III. Reasons for the Proposed Fee Schedule

    While the RMD has automated some portions of the NNCP process, the 
current fees, which have not changed since 1991, do not reflect the 
expense of personnel time and other costs involved in the analysis of 
the pertinent information. The NNCP disseminates information from the 
FBI's Central Records System (CRS) in response to requests submitted by 
federal agencies, Congressional committees, the federal judiciary, 
friendly foreign police and intelligence agencies. The CRS contains the 
FBI's administrative, personnel, and investigative files. The NNCP was 
established under Executive Order No. 10450, issued on April 27, 1953, 
18 FR 2489, which mandated National Agency checks in the background 
investigation of prospective Government employees. The FBI performs the 
primary National Agency check on all U.S. Government employees and 
provides information to more than 40 federal agencies. The information 
from the CRS, disseminated under the NNCP, is evaluated by governmental 
agencies before bestowing privileges such as visas, naturalization or 
work authorizations under the Immigration and Nationality Act, Public 
Law 82-414 as amended, and other federal laws.
    The CRS consists of administrative, applicant, criminal, personnel, 
and other files arranged by subject matter relating to an individual, 
an organization, or other matters. The CRS records are maintained at 
FBI Headquarters and FBI Field Offices. The CRS can be accessed through 
the General Indices, which are arranged in alphabetical order by 
subject, such as the names of individuals and organizations.
    In 1995, the FBI implemented the Automated Case Support (ACS) 
system to access 105 million records from previous automated systems. 
The ACS consists of three automated applications that support case 
management functions for all investigative and administrative cases. 
The Investigative Case Management application is used to open, assign 
and track leads and close investigative and administrative cases. The 
Electronic Case File serves as the central electronic repository for 
the FBI's official text-based documents. The Universal Index (UNI) 
provides a complete subject and case index to approximately 99 million 
records in investigative and administrative cases. The UNI lists the 
names of individuals or entities, with identifying information such as 
date of birth and social security number.
    The processing of an NNCP search begins with the search of a 
person's name in the UNI to locate all instances of the person's name 
and identifying information in the main and reference files. A main 
file concerns the subject of an FBI investigation, and a reference file 
concerns an individual whose name appears in part of an FBI 
investigation, such as an associate or witness. Over 60 percent of the 
initial NNCP electronic checks in UNI yield no identifiable information 
regarding the person and are termed ``No record,'' and that information 
is reported to the requesting agency. If the search of UNI yields 
possibly identifiable information, the

[[Page 24797]]

NNCP request requires additional review and an additional manual name 
search is conducted. If identifiable information is located, the 
records are retrieved and reviewed for possible derogatory information 
concerning the subject of the NNCP request. The FBI forwards a summary 
of the derogatory information to the requesting agency.
    By letter, dated August 30, 2007, to all RMD customers using the 
NNCP for noncriminal justice purposes, the FBI established the proposed 
fee schedule on an interim basis, effective October 1, 2007. RMD 
customers were advised of the revised fees prior to the start of FY 
2008, thereby avoiding costly and confusing mid-year changes. The FBI 
will continue to analyze its costs in processing searches in the NNCP 
and will review related fee charges periodically, as recommended by 
Office of Management and Budget Circular No. A-25, (OMB Circular A-25) 
User Charges. Any adjustments to the FBI's fees will be announced by 
notice in the Federal Register.

IV. Standards and Guidelines Used To Calculate the Fee

    Public Law 101-515 links the user fees charged for processing name 
checks and fingerprint identification records to the cost of providing 
these services. Such costs not only include the salaries of employees 
engaged in providing the services but, in accordance with generally 
accepted accounting principles, also include such expenses as capital 
investment, depreciation, automation, and so forth. Congress recognized 
these additional expenses of processing records by authorizing the FBI 
to establish user fees at a level to include an amount ``to defray 
expenses for the automation of fingerprint identification and criminal 
justice information services and associated costs.''
    In the absence of express statutory authority, federal agencies are 
authorized to establish fees by the Independent Office Appropriation 
Act of 1952, 31 U.S.C. 9701, which is implemented by specific 
guidelines in OMB Circular A-25. Since the FBI has express statutory 
authority to establish and collect fees under Public Law 101-515, the 
FBI is not required to follow strictly the mandates of OMB Circular A-
25; however, the FBI did look to OMB Circular A-25 for guidance. For 
example, OMB Circular A-25's definition of ``full cost'' (``all direct 
and indirect costs to any part of the Federal Government of providing a 
good, resource, or service'') was used as a model by the FBI in 
establishing the subject user fees, including direct and indirect 
personnel costs, physical overhead, and other indirect costs such as 
material costs, utilities and equipment.

V. Calculation of the Revised Fee

    The FBI hired a contractor, Grant Thornton LLP., 333 John Carlyle 
Street, Alexandria, Virginia, 22314, (Grant Thornton) to conduct an 
independent analysis of pertinent costs and to recommend a revised fee 
schedule for the NNCP checks conducted by RMD. Referencing OMB Circular 
A-25; the Statement of Federal Financial Accounting Standards (SFFAS-
4): Managerial Cost Accounting Concepts and Standards for the Federal 
Government; and other relevant financial management directives, Grant 
Thornton developed a cost accounting methodology and related cost 
models based upon the concept and principles of activity-based costing 
(ABC). The cost models identified the total resource costs associated 
with the services provided to RMD customers, including personnel (e.g., 
salary and benefits), non-labor (e.g, material, equipment, and 
facility) and overhead (e.g., management and administration) costs, and 
assigned or allocated these costs to the various service categories 
using relevant cost drivers. The cost drivers were selected primarily 
for their strong cause-effect linkages between the resources and the 
activities and services that consumed them. The unit costs for RMD's 
NNCP services incorporated in this study were derived from a robust 
costing network that is based on the principles of ABC, a widely 
recognized and accepted cost accounting methodology. Grant Thornton 
generated the revised fee schedule based upon these unit costs.
    The methodology focused on developing full cost information for 
NNCP's activities and services to provide a basis for the fee 
recommendations. FY 2005 costs were used to develop baseline cost 
information, and additional estimated costs and adjustments were 
included to estimate resources for FY 2008 and FY 2009. The projected 
cost information served as the basis for the fee recommendations.
    Grant Thornton developed their cost accounting methodology using 
the following steps for the non-automation portion of the fee. First, 
NNCP services and activities performed for name checks were defined. 
Then operational labor costs, support labor costs and non-labor costs, 
including appropriate overhead and support costs, were identified and 
assigned to activities and then to services. Estimated costs, 
transaction volumes and trends were analyzed to predict appropriate 
costs and transaction volumes for FY 2008. Finally, using the projected 
FY 2008 costs and the projected FY 2008 transaction volumes, the 
projected unit costs for each service were calculated. The recommended 
user fees were based on these projected unit costs.
    As explained above, under Public Law 101-515, the FBI is also 
authorized to charge an additional amount for the automation of 
fingerprint identification and criminal justice information services 
and associated costs. Although NNCP fees have not included this 
additional amount to date, the FBI considers the service provided by 
the NNCP as being a criminal justice information service. The costs 
associated with enhancing the NNCP, including the automation efforts, 
were identified and included in the name check fee study reflected in 
the rule. The estimated costs for these automation efforts were based 
on best available information regarding planned information technology 
investments. The projected FY 2008 and FY 2009 volumes were then used 
to calculate the unit costs for this portion of the fee. Once the unit 
costs were calculated, Grant Thornton generated the revised fee 
schedule. The FBI then independently reviewed the Grant Thornton 
recommendations, compared them to current fee calculations and plans 
for future services, and determined that the revised schedules were 
both objectively reasonable and in consonance with the underlying legal 
authorities.

VI. Revised Fee Schedule

    As noted above, the FBI established the fee schedule on an interim 
basis, effective October 1, 2007. Fee classes remained essentially the 
same, with the exception that manual submissions and expedited 
processing requests were consolidated into a single class. Under the 
interim fee schedule, the fee was increased only 10 cents for users 
submitting electronic requests that are limited to batch processing 
(from $1.40 to $1.50). The fee increases for name checks involving non-
electronic submissions and other special services were more substantial 
because of the higher cost for processing manual submissions and 
expediting responses ahead of routine transactions. Unit costs are 
rounded up to the next $0.25.

[[Page 24798]]

                                             Summary of Fee Changes
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                                                                                                     Total fee
                             Service                               Previous fee     Interim fee      increase
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

    The FBI will continue to analyze its costs and will review related 
fee charges periodically, as recommended by OMB Circular A-25. The 
final rule advises that future adjustments to the FBI's fees will be 
announced by notice in the Federal Register.

VII. Administrative Consultations With Interested Federal Agencies

    The FBI has provided information about this rule to the largest 
three customers by volume of submissions, the United States Citizenship 
and Immigration Services, the Office of Personnel Management and the 
Department of State. The FBI will develop standards of performance and 
timeliness with these three federal customers. As appropriate, the FBI 
will pursue similar arrangements with its other federal customers.

Discussion of Comments

    Only one comment on the proposed rule was received. An organization 
of research universities expressed concern that the rule might limit 
access to FBI records for research or medical purposes. This rule, 
however, simply sets out the Director of the FBI's authority to 
establish and collect fees for providing name-based background checks 
conducted by the NNCP of the RMD. The rule does not have any impact on 
procedures of access to research, statistical or human subject 
information. Therefore, after carefully reviewing the single comment to 
the NPRM, the FBI has determined that no changes to the rule are 
necessary.

VIII. Regulatory Certifications

Regulatory Flexibility Act

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires the agency to ``prepare and make 
available for public comment an initial regulatory flexibility 
analysis'' which will ``describe the impact of the proposed rule on 
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an 
agency to certify, in lieu of preparing an analysis, that the proposed 
rulemaking is not expected to have significant economic impact on a 
substantial number of small entities. Small entities are defined by the 
RFA to include small businesses, small organizations, and small 
governmental jurisdictions.
    This rule only concerns federal agencies authorized to request 
name-based record background checks, and Federal agencies do not fall 
within the definition of a ``small entity.'' Accordingly, the Director 
of the FBI hereby certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.

Executive Order 12866 (Regulatory Planning and Review)

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. The FBI has determined that this rule is a 
significant regulatory action under Executive Order 12866, Regulatory 
Planning and Review, section 3(f) and accordingly this rule has been 
reviewed by the Office of Management and Budget.

Executive Order 12988 (Civil Justice Reform)

    This final rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13132 (Federalism)

    This final rule will not have a substantial direct effect on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. The rule does not alter any of the policy 
set out at 28 CFR Part 20, or 28 CFR, Parts 901-906. Therefore, in 
accordance with Executive Order 13132, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Unfunded Mandates Reform Act of 1995

    This final rule does not contain a mandate that will result in the 
expenditure by state, local, and tribal governments (in the aggregate) 
or by the private sector of $100 million or more in any one year, and 
it will not significantly or uniquely affect small governments. 
Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
rule will not result in an annual effect on the U.S. economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of U.S.-based companies to compete with 
foreign-based companies in domestic and export markets.

IX. Conclusion

    After careful consideration, the Department does not believe that 
any change to the rule is necessary based on the comment it received.

List of Subjects in 28 CFR Part 20

    Classified information, Crime, Intergovernmental relations, 
Investigations, Law enforcement, Privacy.

0
Accordingly, pursuant to the authority set forth in Public Law 101-515, 
as amended by Public Law 104-99, set out in the notes to 28 U.S.C. 534, 
Part 20 of Chapter I of Title 28 of the CFR is amended as follows.

PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS

0
1. The authority citation for Part 20 continues to read as follows:

    Authority: 28 U.S.C. 534; Pub. L. 92-544, 86 Stat. 1115; 42 
U.S.C. 3711, et seq., Pub. L. 99-169, 99 Stat. 1002, 1008-1011, as 
amended by Pub. L. 99-569, 100 Stat. 3190, 3196; Pub. L. 101-515, as 
amended by Pub. L. 104-99, set out in the notes to 28 U.S.C. 534.

0
2. Amend Sec.  20.31 to add paragraph (f) to read as follows:

Sec.  20.31  Responsibilities.

* * * * *
    (f) The FBI will collect a fee for providing noncriminal name-based

[[Page 24799]]

background checks of the FBI Central Records System through the 
National Name Check Program pursuant to the authority in Pub. L. 101-
515 and in accordance with paragraphs (e)(1), (2) and (3) of this 
section.

    Dated: April 26, 2010.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
[FR Doc. 2010-10628 Filed 5-5-10; 8:45 am]
BILLING CODE 4410-02-P
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