55794 Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Proposed Rules 

[FR Doc. E8–22568 Filed 9–25–08; 8:45 am] 

BILLING CODE 4910–13–C 

DEPARTMENT OF JUSTICE 

28 CFR Part 20 

[FBI Docket No. 118] 

RIN 1110–AA29 

FBI Records Management Division 

National Name Check Program Section 

User Fees 

AGENCY: Federal Bureau of Investigation 

(FBI), Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The FBI is authorized to 

establish and collect fees for providing 

fingerprint-based and name-based 

criminal history record information 

(CHRI) checks and other identification 

services submitted by authorized users 

for non-criminal justice purposes 

including employment and licensing. 

The fees may include an amount to 

establish a fund to defray expenses for 

the automation of criminal justice 

information services and associated 

costs. The proposed rule concerns the 

name-based checks conducted by the 

Records Management Division (RMD) in 

the National Name Check Program 

(NNCP). 

The rule explains the methodology 

used to calculate the revised fees and 

provides a proposed fee schedule. After 

public comment, a final rule and notice 

of the final fee schedule will be 

published in the Federal Register. 

DATES: Written comments must be 

received on or before November 25, 

2008. 

ADDRESSES: You may submit comments, 

identified by Docket No. FBI 118, by 

either of the following methods: 

• Federal Regulations Web site: You 

may review this regulation on http:// 

www.regulations.gov and use the 

comment form for this regulation to 

submit your comments. You must 

include Docket No. FBI 118 in the 

subject box of your message. 

• Mail: You may use the U.S. Postal 

Service or other commercial delivery 

services to submit written comments to 

the FBI, Records Management Division, 

National Name Check Program Section, 

1325 G Street, Room G–300, 

Washington, DC 20005, Attention: 

Michael A. Cannon. 

To ensure proper handling, please 

reference Docket No. FBI 118 in your 

comment. When submitting written 

comments, please allow for delivery 

time plus at least two days for internal 

mail security scanning and delivery. 

FOR FURTHER INFORMATION CONTACT: 

Michael Cannon, FBI, Records 

Management Division, National Name 

Check Program Section, 1325 G Street, 

Room G–300, Washington, DC 20005, 

telephone number (202) 220–1198. 

SUPPLEMENTARY INFORMATION: 

I. Posting of Public Comments 

II. Background 

III. Fee Calculation 

IV. Revised Fee Schedule 

V. Administrative 

VI. Regulatory Certifications 

I. Posting of Public Comments 

Please note that all comments on the 

proposed rule are considered part of the 

public record and made available for 

public inspection online at http:// 

www.regulations.gov. Such information 

includes personal identifying 

information (such as your name, 

address, etc.) voluntarily submitted by 

the commenter. 

If you want to submit personal 

identifying information (such as your 

name, address, etc.) as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also locate 

all the personal identifying information 

you do not want posted online in the 

first paragraph of your comment and 

identify what information you want 

redacted. 

If you want to submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on http:// 

www.regulations.gov. 

Personal identifying information 

identified and located as set forth above 

will be placed in the agency’s public 

docket file, but not posted online. 

Confidential business information 

identified and located as set forth above 

will not be placed in the public docket 

file. If you wish to inspect the agency’s 

public docket file in person by 

appointment, please see the ‘‘For 

Additional Information’’ paragraph. 

II. Background 

For purposes of discussion, FBI user 

fees may be differentiated by the FBI 

Division providing the service. The user 

fees for the National Name Check 

Program (NNCP) checks provided by the 

Records Management Division (RMD) 

are the subject of this rulemaking. Fees 

for the criminal history record 

information checks provided by the 

Criminal Justice Information Services 

Division (CJIS) are the subject of a 

separate rulemaking (Docket No. FBI 

114, RIN 1110–AA26). The separate CJIS 

fee rule also proposes to amend 28 CFR 

20.31. In the event that the CJIS fee rule 

is finalized first, the revisions proposed 

in this rulemaking to section 20.31(e) 

will be conformed with the changes 

contained in the CJIS fee rule. 

The rulemaking process provides 

federal governmental agencies and the 

public the opportunity to review and 

comment on the methodology utilized 

by the FBI to implement its statutory 

authority to establish and collect fees 

and the proposed fee schedule, and 

advises that future fee adjustments will 

be made by notice published in the 

Federal Register. After analysis and 

response to the comment, a final rule 

and notice of the fee schedule will be 

published in the Federal Register. This 

rule will be published at Part 20 of 28 

CFR. 

FBI’s Legal Authority To Collect Fees 

The FBI has collected fees for NNCP 

checks since 1991, under the authority 

set out in Public Law 101–162. This law 

authorized the FBI to collect fees to 

process identification records and name 

checks for non-criminal justice purposes 

and to set such fees at a level to include 

an amount to defray expenses for the 

automation of fingerprint identification 

and associated costs. Congress, in Public 

Law 101–515, subsequently authorized 

the FBI to establish and collect these 

fees on a continuing basis. 

National Name Check Program Services 

Under Public Law 101–515, the FBI is 

authorized to charge a fee for noncriminal justice name-based checks for 

such purposes as immigration, Federal 

Government employment and security 

clearance processes. The FBI does not 

charge a fee for NNCP services 

performed for criminal justice purposes, 

which are supported by federal 

appropriations. 

Reasons for the Proposed Fee Schedule 

While the RMD has automated some 

portions of the NNCP process, the 

current fees, which have not changed 

since 1991, do not reflect the expense of 

personnel time and other costs involved 

in the analysis of the pertinent 

information. As explained below, the 

NNCP disseminates information from 

the FBI’s Central Records System (CRS) 

in response to requests submitted by 

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federal agencies, Congressional 

committees, the federal judiciary, 

friendly foreign police and intelligence 

agencies. The CRS contains the FBI’s 

administrative, personnel, and 

investigative files. The NNCP was 

established under Executive Order No. 

10450, issued on April 27, 1953, 18 FR 

2489, which mandated National Agency 

Checks (NAC) in the background 

investigation of prospective Government 

employees. The FBI performs the 

primary NAC on all U.S. government 

employees and provides information to 

more than 40 federal agencies based on 

fiscal year (FY) 2005 data. The 

information from the CRS, disseminated 

under the NNCP, is evaluated by 

governmental agencies before bestowing 

privileges such as visas, naturalization 

or work authorizations under the 

Immigration and Nationality Act, Public 

Law 82–414 as amended, and other 

federal laws. 

The CRS consists of administrative, 

applicant, criminal, personnel, and 

other files arranged by subject matter 

relating to an individual, an 

organization, or other matter. The CRS 

records are maintained at FBI 

Headquarters and FBI Field Offices. The 

CRS can be accessed through the 

General Indices, which are arranged in 

alphabetical order by subject, such as 

the names of individuals and 

organizations. 

In 1995, the FBI implemented the 

Automated Case Support (‘‘ACS’’) 

system to access 105 million records 

from previous automated systems. The 

ACS consists of three automated 

applications that support case 

management functions for all 

investigative and administrative cases. 

The Investigative Case Management 

application is used to open, assign and 

track leads and close investigative and 

administrative cases. The Electronic 

Case File serves as the central electronic 

repository for the FBI’s official textbased documents. The Universal Index 

(UNI) provides a complete subject and 

case index to approximately 99 million 

records in investigative and 

administrative cases. The UNI lists the 

names of individuals or entities, with 

identifying information such as date of 

birth and social security number. 

The processing of an NNCP search 

begins with the search of a person’s 

name in the UNI to locate all instances 

of the person’s name and identifying 

information in the main and reference 

files. A main file concerns the subject of 

an FBI investigation, and a reference file 

concerns an individual whose name 

appears in part of an FBI investigation, 

such as an associate or witness. Over 60 

percent of the initial NNCP electronic 

checks in UNI yield no identifiable 

information regarding the person and 

are termed ‘‘No record,’’ and that 

information is reported to the requesting 

agency. If the search of UNI yields 

possibly identifiable information, the 

NNCP request requires additional 

review and an additional manual name 

search is conducted. If identifiable 

information is located, the records are 

retrieved and reviewed for possible 

derogatory information concerning the 

subject of the NNCP request. The FBI 

forwards a summary of the derogatory 

information to the requesting agency. 

By letter, dated August 30, 2007, to all 

RMD customers using the NNCP for 

non-criminal justice purposes, the FBI 

established the proposed fee schedule 

on an interim basis, effective October 1, 

2007. That is the same process the FBI 

has followed in implementing changes 

in fees for other non-criminal justice 

identification services. Although the 

proposed rule will establish the user 

fees by notice and comment rulemaking, 

RMD customers were advised of the 

revised fees prior to the start of FY 2008, 

thereby allowing them to prepare for the 

changes. 

The FBI will continue to analyze its 

costs in processing searches in the 

NNCP and will review related fee 

charges periodically, as recommended 

by Office of Management and Budget 

Circular No. A–25, (OMB Circular A–25) 

User Charges. The proposed rule advises 

that adjustments to the FBI’s fees will be 

announced by notice in the Federal 

Register. 

III. Fee Calculation 

Cost Accounting Standards and 

Guidelines Used To Calculate the Fee 

Public Law 101–515 links the user 

fees charged for processing name checks 

and fingerprint identification records to 

the cost of providing these services. 

Such costs not only include the salaries 

of employees engaged in providing the 

services but, in accordance with 

generally accepted accounting 

principles, also include such expenses 

as capital investment, depreciation, 

automation, and so forth. Congress 

recognized this by authorizing the FBI 

to establish user fees at a level to 

include an amount ‘‘to defray expenses 

for the automation of fingerprint 

identification and criminal justice 

information services and associated 

costs.’’ 

In the absence of express statutory 

authority, federal agencies are 

authorized to establish fees by the 

Independent Office Appropriation Act 

of 1952, 31 U.S.C. 9701, which is 

implemented by specific guidelines in 

OMB Circular A–25. Since the FBI has 

specific statutory authority to establish 

and collect fees under Public Law 101– 

515, the FBI is not required to follow 

strictly the mandates of OMB Circular 

A–25. In establishing the fees set out in 

this proposed rule, however, the FBI did 

look to OMB Circular A–25 for 

guidance. For example, OMB Circular 

A–25’s definition of ‘‘full cost’’ (‘‘all 

direct and indirect costs to any part of 

the Federal Government of providing a 

good, resource, or service’’) was used as 

a model by the FBI in establishing the 

subject user fees, including direct and 

indirect personnel costs, physical 

overhead, and other indirect costs such 

as material costs, utilities and 

equipment. 

Calculation of the Revised Fee 

The FBI hired a contractor, Grant 

Thornton LLP., 333 John Carlyle Street, 

Alexandria, Virginia 22314, (Grant 

Thornton) to conduct an independent 

analysis of pertinent costs and to 

recommend a revised fee schedule for 

the NNCP checks conducted by RMD. 

Referencing OMB Circular A–25; the 

Statement of Federal Financial 

Accounting Standards (SFFAS–4): 

Managerial Cost Accounting Concepts 

and Standards for the Federal 

Government; and other relevant 

financial management directives, Grant 

Thornton developed a cost accounting 

methodology and related cost models 

based upon the concept and principles 

of activity-based costing (ABC). The cost 

models identified the total resource 

costs associated with the services 

provided to RMD customers, including 

personnel (e.g., salary and benefits), 

non-labor (e.g., material, equipment, 

and facility) and overhead (e.g., 

management and administration) costs, 

and assigned or allocated these costs to 

the various service categories using 

relevant cost drivers. The cost drivers 

were selected primarily for their strong 

cause-effect linkages between the 

resources and the activities and services 

that consumed them. The unit costs for 

RMD’s NNCP services incorporated in 

this study were derived from a robust 

costing network that is based on the 

principles of ABC, a widely recognized 

and accepted cost accounting 

methodology. Grant Thornton generated 

the revised fee schedule based upon 

these unit costs. 

The methodology focused on 

developing full cost information for 

NNCP’s activities and services to 

provide a basis for the fee 

recommendations. Generally accepted 

standards and regulatory guidance were 

followed, as specified by the Federal 

Accounting Standards Advisory Board’s 

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55796 Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Proposed Rules 

(FASAB) Statement Number 4: 

Managerial Cost Accounting Concepts 

and Standards for the Federal 

Government and the Office of 

Management and Budget’s (OMB) 

Circular A–25: User Charges. FY 2005 

costs were used to develop baseline cost 

information, and additional estimated 

costs and adjustments were included to 

estimate resources for FY 2008 and FY 

2009. The projected cost information 

served as the basis for the fee 

recommendations. 

Grant Thornton developed their cost 

accounting methodology using the 

following steps for the non-automation 

portion of the fee. 

• NNCP services and activities 

performed for name checks were 

defined. 

• Operational labor costs were 

identified and assigned to activities and 

then to services. 

• Support labor costs were identified 

and assigned to activities and then to 

services. 

• Non-labor costs, including 

appropriate overhead and support costs, 

were identified and assigned to 

activities and then to services. 

• Cost estimates were made for FY 

2008, when the revised user fees are 

expected to be implemented. 

• Transaction volumes and trends 

were analyzed to predict appropriate 

transaction volumes for fiscal year FY 

2008. 

• Finally, using the projected FY 

2008 costs and the projected FY 2008 

transaction volumes, the projected unit 

costs for each service were calculated. 

The recommended user fees were based 

on these projected unit costs. 

As explained above, under Public 

Law 101–515, the FBI is also authorized 

to charge an additional amount for the 

automation of fingerprint identification 

and criminal justice information 

services and associated costs. Although 

NNCP fees have not included this 

additional amount to date, the FBI 

considers the service provided by the 

NNCP as being a criminal justice 

information service. The costs 

associated with enhancing the NNCP, 

including the automation efforts, were 

identified and included in the name 

check fee study reflected in this NPRM. 

The FBI is therefore proposing to add an 

automation surcharge to the NNCP fee 

pursuant to Public Law 101–515. The 

estimated costs for these automation 

efforts were based on best available 

information regarding planned IT 

investments. The projected FY 2008 and 

FY 2009 volumes were then used to 

calculate the unit costs for this portion 

of the fee. Once the unit costs were 

calculated, Grant Thornton generated 

the revised fee schedule. The FBI then 

independently reviewed the Grant 

Thornton recommendations, compared 

them to current fee calculations and 

plans for future services, and 

determined that the revised schedules 

were both objectively reasonable and in 

consonance with the underlying legal 

authorities. 

Overview of the Costs Included in the 

Fee Calculation 

The fee calculation was produced by 

gathering the labor and non-labor costs 

of those divisions of the FBI that 

directly or indirectly support the 

provision of the NNCP name check 

services, and then using various drivers 

to assign those costs to the identified 

activities. The activities were then 

assigned to the specific name check 

service. The ABC model examined in 

detail only those costs which were 

related to the name check services. 

These services included both the 

criminal justice and law enforcement 

and the non-criminal justice 

identification services performed by the 

NNCP. The discussion below is limited 

to those costs in the ABC model which 

were assigned to name check services 

that are supported by the user fees. In 

other words, even though the ABC 

model calculated unit costs for all 

NNCP name checks, the costs for 

processing criminal justice name checks 

will not be discussed in this regulation 

since they are funded with 

appropriations and not with user fees. 

The costs for providing the feesupported name check services include 

the personnel costs for both direct and 

indirect support, as well as non-labor 

costs such as travel, training, rent, 

equipment, utilities, printing, contract 

support, and supplies. In addition, 

depreciation for existing nonautomation assets were included per 

OMB Circular A–25 guidance. Finally, 

portions of the FBI costs for workers 

compensation, unemployment 

compensation, and the judgment fund 

used to pay judgments against the 

United States where appropriations 

have not otherwise been provided were 

included. These costs were derived from 

the FBI financial systems and other 

relevant information provided by FBI 

personnel. The FY 2008 predicted costs 

were obtained by adding an inflation 

factor for labor and other non-labor 

expenses and identifying other expected 

changes in cost. The OMB pay raise and 

inflation factors provided in OMB 

Circular A–11, Preparation, Submission, 

and Execution of an Agency Budget, 

were used. The costs associated with 

providing the services do not include 

any of the automation costs which 

instead were based on capital 

investment planning for the automation 

portion of the fee described below. The 

costs for the additional charge for 

automation were based on the most 

recent NNCP estimates for planned 

systems automation and enhancement. 

IV. Revised Fee Schedule 

Proposed Changes to the Fee Schedule 

The current NNCP fee schedule 

services are: 

• Electronic (Batch Processed) 

• File Review and Analysis 

• Manual (Paper-Based Request) 

• Expedite (Paper-Based Request) 

FBI proposes a tiered fee structure 

that maintains the distinction between 

requests completed during the 

automated batch processing and those 

that must go on for additional file 

review and analysis (formerly referred 

to as indices popular). However, the 

recommended fee structure does 

maintain a distinction between requests 

submitted electronically or on paper. 

Manual requests represent 

approximately 3% of name checks 

processed, and NNCP is undertaking 

efforts to encourage customers to submit 

all name check requests electronically. 

The proposed fee structure is: 

• Electronic (Batch Processed) 

• File Review/Analysis (Routine) 

• File Review/Analysis (Expedited) 

While there is not an expedite fee for 

batch processing (they are typically 

completed within a few days), the 

proposed fee structure does distinguish 

between routine processing and 

expedited processing for name checks 

that require additional review and 

analysis. The FBI receives some requests 

for expedited processing of name checks 

but does not currently charge an 

additional fee for the expedited service 

(except for a small number of manual 

requests). Expedited requests receive 

priority processing, and the expedited 

processing fee accounts for this 

difference in prioritization by charging 

the customer requesting expedited 

service a higher amount to reflect the 

preferential treatment and shorter 

processing time. 

Discussion of Proposed Changes to the 

Fee Schedule 

The fee structure described above was 

proposed for the following reasons: 

• Reflects difference in cost. There is 

a significant difference between the unit 

cost of automated batch processing and 

file review and analysis. The 

recommended fee structure reflects this 

difference by charging a separate fee for 

these two phases of the name check 

process. 

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• Reflects customer choice. The 

recommended fee structure has separate 

fees for routine and expedited 

processing of name checks. This reflects 

a customer choice regarding which level 

of service to request. 

• Move toward all electronic requests. 

The NNCP intends to have all name 

check requests provided by their 

customers in electronic format. The 

NNCP will develop a web interface to 

allow the customers to enter the 

appropriate data into the NNCP system 

rather than mail a hard copy request. 

Therefore, the recommended fee 

structure does distinguish between 

electronic and manual submission of 

name check requests. 

• Less administrative burden. The 

recommended fee structure has fewer 

separate services so there are fewer 

services/fees to bill. 

As mentioned previously, customers 

receiving expedited processing should 

be charged a higher fee compared to 

routine processing. Customers who 

receive expedited processing derive 

additional benefit because they receive 

preferential treatment; requests for 

routine processing must wait longer 

because the expedited requests get 

moved up in the queue. 

The Independent Offices 

Appropriation Act (IOAA) serves as a 

government-wide authority on fee 

setting in the federal government. 

According to the IOAA, a user charge 

shall be based on: 

• Costs to the Government 

• Value of the service or thing to the 

recipient 

• Public policy or interest served 

• Other relevant facts 

Regarding the value criterion, requests 

that receive expedited processing 

receive higher value when compared to 

those that receive routine processing. 

The expedited processing fee accounts 

for this added value by charging a 

higher fee because the request receives 

preferential treatment and is processed 

in a shorter period of time. 

Consideration was given to the 

difference in processing time for routine 

and expedited requests to calculate the 

expedite fee. This data measured the 

average number of days involved in 

each type of request from the date 

received to the date finalized. This 

difference in processing time served as 

the basis for adjusting the fees for 

routine and expedited processing. 

Detail of the Costs Used To Calculate 

the Fee 

The costs were calculated based on 

the cost of providing NNCP name 

checks using the ABC model 

constructed by Grant Thornton. The 

costs include labor costs, non-labor 

costs (including unfunded personnel 

and judgment fund costs), automation 

costs; and general overhead and support 

costs. These costs are discussed in more 

detail below. 

The cost structure reflects the type of 

cost and organizational structure of the 

NNCP and other FBI units involved in 

providing name check services. The 

NNCP costs are comprised of the 

following categories: 

Labor—includes personnel 

compensation (salary and benefits) for 

direct costs. 

Center FY2008 

Name Check Center ............. $9,982,910 

Other Records Management 

Units .................................. 908,046 

Field Office Support .............. 8,278,415 

Information Technology Support .................................... 233,569 

Finance Division Support ..... 64,247 

Office of General Counsel .... 2,535,942 

Document Scanning Support 2,923,911 

Total ............................... 24,927,040 

Non-labor includes direct and indirect 

non-labor expense data for the Name 

Check and RMD front office, contractor 

support, and depreciation. 

Center FY2008 

Name Check/RMD ................ $2,226,367 

Batch Processing Enhancement .................................. 310,000 

Contractor Support ............... 12,318,813 

Depreciation/Equipment Replacement .......................... 115,965 

Center FY2008 

Document Scanning/ 

Consumables .................... 1,836,257 

Total ............................... 16,807,402 

Bureau overhead/support includes 

indirect costs to provide joint or 

common services to NNCP. 

Center FY2008 

Office of the Chief Information Officer ......................... $1,579,600 

Human Resources ................ 62,2626 

Finance ................................. 85,428 

Federal Employees’ Compensation Act .................... 49,446 

Judgment Fund ..................... 7,005 

Security ................................. 445,185 

Telecommunications ............. 196,212 

Inspection ............................. 52,361 

Rent ...................................... 2,146,320 

Training and Development ... 11,556 

Shipping ................................ 101,264 

Total ............................... 4,736,639 

Additional Charge for Automation 

The FBI is authorized by law (Pub. L. 

101–515) to charge an additional 

amount for each name check to defray 

expenses for automation and associated 

costs. Under this authority, the 

additional amount may be placed in a 

separate account and retained until 

expended. The proposed amount of the 

additional charge is currently estimated 

to be $1.00 per name check. The 

additional amount was calculated by 

dividing the estimated two-year total 

cost of planned Information Technology 

(IT) investments by the estimated twoyear volume of name check requests. 

Current estimates total approximately 

$7.2 million to be invested in system 

enhancements during FY 2008 and FY 

2009. The tables below provide more 

detailed information on the planned IT 

investments. The total is divided by an 

estimated 2-year volume of 7.15 million 

name check requests to arrive at an 

additional amount of $1.00 per name 

check. 

SUMMARY OF SPENDING FOR PROJECT (INVESTMENT) STAGES

Fiscal year 2008 Fiscal year 2009 Total 

Planning ............................................................................................................... $1,200,000 $0 $1,200,000 

Acquisition ............................................................................................................ 3,000,000 3,000,000 6,000,000 

Total .............................................................................................................. 4,200,000 3,000,000 7,200,000 

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Volumes Used To Calculate the Fee 

The unit cost and proposed fees are 

based on the following projected 

volumes for FY 2008: 

Product/service Projected 

volume 

Electronic (Batch Process) ....... 3,471,638 

File Review/Analysis (Routine) 1,186,891 

File Review/Analysis 

(Expedited) ............................ 209,451 

These projections were based on 

analysis of FY 2005 and FY 2006 

workload volume, along with expected 

workload increases for FY 2008. 

Significant factors that influenced the 

projections were continued work on 

pending cases and expected workload 

increase from Homeland Security 

Presidential Directive (HSPD)—12 

requirements. 

Projected costs and workload were 

used to calculate the proposed fees 

provided in the table below. The fees 

shown below include the additional 

$1.00 charge previously discussed. 

Some NNCP name checks (criminal 

justice and law enforcement) can not be 

billed to customers, and the revenue 

estimates provided below are based on 

estimated billable volume. The billable 

volume and revenue estimates are based 

on the following assumptions: 

• Under the new fee structure, 15% of 

name checks processed after the batch 

process will be expedited requests. This 

is based on an analysis of FY 2006 

workload data. 

• The revenue estimate assumes that 

85% of NNCP requests are billable to 

customers. As provided in the 

authorizing language, name checks 

performed for certain purposes are 

exempt from the fee. The cost of the 

remaining fee-exempt requests is not 

recovered through fees charged for 

billable work but is paid from FBI salary 

and expense appropriation. 

• Unit costs are rounded up to the 

next $0.25. 

Product/service Annual billable 

volume Fee Revenue 

Electronic (Batch Process) ........................................................................................................ 1,1918,080 $1.50 $2,877,120 

File Review/Analysis (Routine) .................................................................................................. 1,008,857 29.50 29,761,282 

File Review/Analysis (Expedited) .............................................................................................. 178,033 56.00 9,969,848 

Total .................................................................................................................................... .............................. .............. 42,608,250 

The following table shows the amount 

that each cost category (labor, non-labor, 

and overhead/support) contributes to 

the fee. The cost of batch processing is 

not included in the subtotal unit cost for 

File Review/Analysis; however, batch 

processing is performed prior to the File 

Review/Analysis service and is 

included in the proposed fee. This table 

also shows the adjustment made for the 

expedited fee. 

Cost category/adjustment Electronic 

(batch process) 

File review/analysis 

(routine) 

File review/analysis 

(expedite) 

Labor ............................................................................................ $0.21 $17.33 $17.33 

Non-Labor .................................................................................... 0.04 11.71 11.71 

Overhead/Support ........................................................................ 0.25 2.98 2.98 

Subtotal Unit Cost ................................................................ 0.50 32.02 32.02 

Expedite Amount ......................................................................... N/A ($4.05) 22.27 

Adjusted Unit Cost ................................................................ 0.50 27.97 54.30 

Round up to $0.25 ....................................................................... 0.00 0.03 0.21 

Batch Processing ......................................................................... N/A 0.50 0.50 

Additional Charge ........................................................................ 1.00 1.00 1.00 

Proposed Fee ....................................................................... 1.50 29.50 56.00 

As noted above, the FBI established 

this proposed fee schedule on an 

interim basis, effective October 1, 2007. 

The following table shows the amounts 

by which the fees were changed. Fee 

classes remained essentially the same, 

with the exception that manual 

submissions and expedited processing 

requests were consolidated into a single 

class. Under the interim fee schedule, 

the fee was increased only 10 cents for 

users submitting electronic requests that 

are limited to batch processing (from 

$1.40 to $1.50). Such users constituted 

more than 60 percent of the billable 

name checks at that time. The fee 

increases for name checks involving 

non-electronic submissions and other 

special services were more substantial 

because of the higher cost for processing 

manual submissions and the cost for 

expediting responses ahead of routine 

transactions. 

SUMMARY OF FEE CHANGES

Service Previous fee Proposed fee Total 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 

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Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Proposed Rules 55799 

The FBI will continue to analyze its 

costs and will review related fee charges 

periodically, as recommended by Office 

of Management and Budget Circular No. 

A–25, User Charges (OMB Circular A– 

25). The proposed rule advises that 

future adjustments to the FBI’s fees will 

be announced by notice in the Federal 

Register. 

V. Administrative 

Consultations With Interested Federal 

Agencies 

The FBI has provided information 

about this proposed rule to the largest 

three customers by volume of 

submissions, the United States 

Citizenship and Immigration Services, 

the Office of Personnel Management, 

and the Department of State. The FBI 

will develop standards of performance 

and timeliness with these three federal 

customers and provide performance 

information against the standards. The 

FBI will develop plans for management 

action in the event the standards agreed 

upon are not met, working with 

customer agencies. As appropriate, the 

FBI may pursue similar arrangements 

with its other federal customers. 

Effective Date for the New Fees 

The proposed rule explains the 

methodology used to calculate the FBI 

revised fees, provides a proposed fee 

schedule, and advises that future fee 

adjustments will be made by notice 

published in the Federal Register. After 

public comment, a final rule and notice 

of the final fee schedule will be 

published concurrently in the Federal 

Register. This new schedule will be put 

into effect 60 days following publication 

of the notice 

Notice of the New Fee Schedule 

Any changes to the Fee Schedule will 

be published in the Federal Register. 

VI. Regulatory Certifications 

Regulatory Flexibility Act 

When an agency issues a rulemaking 

proposal, the Regulatory Flexibility Act 

(RFA) requires the agency to ‘‘prepare 

and make available for public comment 

an initial regulatory flexibility analysis’’ 

which will ‘‘describe the impact of the 

proposed rule on small entities.’’ (5 

U.S.C. 603(a)). Section 605 of the RFA 

allows an agency to certify, in lieu of 

preparing an analysis, that the proposed 

rulemaking is not expected to have 

significant economic impact on a 

substantial number of small entities. 

This proposed rule does not directly 

or indirectly impact any small entity, as 

defined by the RFA to include small 

businesses, small organizations, and 

small governmental jurisdictions. The 

fees for providing name-based checks of 

the FBI Central Records System are 

imposed upon the Federal agencies 

authorized to request these checks, 

therefore, there is no direct or indirect 

impact on small entities, as federal 

agencies do not fall within the 

definition of a small entity. 

Accordingly, the Director of the FBI 

hereby certifies that this rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Executive Order 12866 (Regulatory 

Planning and Review) 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, Regulatory Planning and 

Review section 1(b), Principles of 

Regulation. The FBI has determined that 

this rule is a significant regulatory 

action under Executive Order 12866, 

section 3(f), Regulatory Planning and 

Review, and accordingly this rule has 

been reviewed by the OMB. 

Executive Order 12988 (Civil Justice 

Reform) 

This proposed rule meets the 

applicable standards set forth in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

Executive Order 13132 (Federalism) 

This proposed rule will not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. The fees for 

providing these name-based checks for 

non-criminal justice purposes are 

imposed upon the individual subject of 

the background check or are absorbed 

by the federal agencies submitting the 

requests. Therefore, in accordance with 

Executive Order 13132, it is determined 

that this rule has no federalism 

implications and does not warrant the 

preparation of a Federalism Assessment. 

Unfunded Mandates Reform Act of 1995 

This proposed rule does not contain 

a mandate that will result in the 

expenditure by state, local, and tribal 

governments (in the aggregate) or by the 

private sector of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This proposed rule is not a major rule 

as defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This proposed rule 

will not result in an annual effect on the 

U.S. economy of $100 million or more; 

a major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of U.S.-based companies to 

compete with foreign-based companies 

in domestic and export markets. 

List of Subjects in 28 CFR Part 20 

Classified information, Crime, 

Intergovernmental relations, 

Investigations, Law enforcement, 

Privacy. 

Accordingly, for the reasons set forth 

in the preamble, part 20 of chapter I of 

Title 28 of the Code of Federal 

Regulations is amended as follows: 

PART 20—CRIMINAL JUSTICE 

INFORMATION SYSTEMS 

1. The authority citation for part 20 is 

revised to read as follows: 

Authority: 28 U.S.C. 534; Public Law 92– 

544, 86 Stat. 1115; 42 U.S.C. 3711, et seq., 

Public Law 99–169, 99 Stat. 1002, 1008– 

1011, as amended by Public Law 99–569, 100 

Stat. 3190, 3196; Public Law 101–515, as 

amended by Public Law 104–99, set out in 

the notes to 28 U.S.C. 534. 

2. Section 20.3 is amended by adding 

paragraphs (t) and (u) to read as follows: 

§ 20.3 Definitions. 

* * * * * 

(t) Central Records System or CRS 

encompasses all centralized records of 

FBI Headquarters, field offices and Legal 

Attache offices. See the CRS Privacy Act 

System Notice periodically published in 

the Federal Register for further details. 

(u) National Name Check Program or 

NCP is responsible for disseminating 

information from the FBI CRS in 

response to requests submitted by 

federal agencies. 

3. Section 20.30 is revised to read as 

follows: 

§ 20.30 Applicability. 

The provisions of this subpart of the 

regulations apply to the III System, the 

FIRS, and the CRS, and to duly 

authorized local, state, tribal, federal, 

foreign, and international criminal 

justice agencies to the extent that they 

utilize the services of the III System, the 

FIRS or the CRS. This subpart is 

applicable to both manual and 

automated criminal history records. 

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55800 Federal Register / Vol. 73, No. 188 / Friday, September 26, 2008 / Proposed Rules 

4. Section 20.31 is amended by 

adding paragraphs (e) and (f) to read as 

follows: 

§ 20.31 Responsibilities. 

* * * * * 

(e) The FBI may routinely establish 

and collect fees for non-criminal justice 

identification services as authorized by 

federal law. These fees apply to federal, 

state and any other authorized entities 

requesting name checks for noncriminal justice purposes. 

(1) The Director of the FBI shall 

review the amount of the fee 

periodically, but not less than every four 

years, to determine the current cost of 

processing name checks for noncriminal justice purposes. 

(2) Fee amounts and any revisions 

thereto shall be determined by current 

costs, using a method of analysis 

consistent with widely accepted 

accounting principles and practices, and 

calculated in accordance with the 

provisions of 31 U.S.C. 9701 and other 

federal law as applicable. 

(3) Fee amounts and any revisions 

thereto shall be published as a notice in 

the Federal Register. 

(f) The FBI will collect a fee for 

providing non-criminal name-based 

background checks of the FBI Central 

Records System through the National 

Name Check Program pursuant to the 

authority in Public Law 101–515 and in 

accordance with paragraphs (e)(1), (2) 

and (3) of this section. 

Dated: September 18, 2008. 

Robert S. Mueller, III, 

Director, Federal Bureau of Investigation. 

[FR Doc. E8–22710 Filed 9–25–08; 8:45 am] 

BILLING CODE 4410–02–P 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Parts 56, 57, and 66 

RIN 1219–AB41 

Alcohol- and Drug-Free Mines: Policy, 

Prohibitions, Testing, Training, and 

Assistance 

AGENCY: Mine Safety and Health 

Administration (MSHA), Labor. 

ACTION: Proposed rule; notice of public 

hearing; extension of comment period. 

SUMMARY: The Mine Safety and Health 

Administration (MSHA) will hold a 

public hearing on its proposed rule to 

amend the existing metal and nonmetal 

standards for the possession and use of 

intoxicating beverages and narcotics and 

make the new standard applicable to all 

mines. The proposed rule would also 

require those who violate the 

prohibitions to be removed from the 

performance of safety-sensitive job 

duties until they successfully complete 

the recommended treatment and their 

alcohol- and drug-free status is 

confirmed by a return-to-duty test. 

DATES: All comments must be received 

by midnight Eastern Daylight Savings 

Time on October 29, 2008. 

MSHA will hold a public hearing on 

October 14, 2008. The SUPPLEMENTARY

INFORMATION section of this notice 

includes details of the hearing. 

ADDRESSES: Comments must be clearly 

identified with ‘‘RIN 1219–AB41’’ and 

may be sent by any of the following 

methods: 

(1)Federal e-Rulemaking Portal: http: 

//www.regulations.gov. Follow the 

instructions for submitting comments. 

(2) Electronic mail: zzMSHAcomments@dol.gov. Include ‘‘RIN 1219– 

AB41’’ in the subject line of the 

message. 

(3) Facsimile: 202–693–9441. Include 

‘‘RIN 1219–AB41’’ in the subject line of 

the message. 

(4) Regular Mail: MSHA, Office of 

Standards, Regulations, and Variances, 

1100 Wilson Boulevard, Room 2350, 

Arlington, Virginia 22209–3939. 

(5) Hand Delivery or Courier: MSHA, 

Office of Standards, Regulations, and 

Variances, 1100 Wilson Boulevard, 

Room 2350, Arlington, Virginia. Sign in 

at the receptionist’s desk on the 21st 

floor. 

Comments can be accessed 

electronically at http://www.msha.gov 

under the Rules and Regs link. MSHA 

will post all comments on the Internet 

without change, including any personal 

information provided. 

Comments may also be reviewed at 

the Office of Standards, Regulations, 

and Variances, 1100 Wilson Boulevard, 

Room 2350, Arlington, Virginia. Sign in 

at the receptionist’s desk on the 21st 

floor. 

FOR FURTHER INFORMATION CONTACT: 

Patricia W. Silvey, 

patricia.silvey@dol.gov (E-mail), 202– 

693–9440 (Voice). 

SUPPLEMENTARY INFORMATION: 

I. Background 

On September 8, 2008 (73 FR 52136), 

MSHA published a proposed rule in the 

Federal Register that would amend the 

existing metal and nonmetal standards 

concerning the use of intoxicating 

beverages and narcotics and would 

make the new standard applicable to all 

mines. The proposed rule would 

designate the substances that cannot be 

possessed on mine property or used 

while performing safety-sensitive job 

duties, except when used according to 

a valid prescription. Mine operators 

would be required to establish an 

alcohol- and drug-free mine program, 

which includes a written policy, 

employee education, supervisory 

training, alcohol- and drug-testing for 

miners that perform safety-sensitive job 

duties and their supervisors, and 

referrals for assistance for miners and 

supervisors who violate the policy. The 

proposed rule would also require those 

who violate the prohibitions to be 

removed from the performance of safetysensitive job duties until they 

successfully complete the recommended 

treatment and their alcohol- and drugfree status is confirmed by a return-toduty test. 

II. Public Hearing 

MSHA will hold a public hearing on 

the proposed rule. The public hearing 

will begin at 9 a.m. Eastern Daylight 

Savings Time (EDST). The public 

hearing will be held via Web cast at 

three locations. The hearing will end at 

5 p.m. EDST, or after the last speaker 

speaks. The hearing will be held on the 

following date at the locations and times 

indicated: 

Date Location Contact information 

October 14, 2008 .... Via Webcast: 9 a.m. Eastern Daylight Savings Time ........... Office of Standards, Regulations and Variances 202–693– 

9440. 

Cisco Washington DC, 1300 Pennsylvania Avenue, NW., 

Suite 250, Washington, DC 20004, POC: Mic Keith 202– 

354–2904 (main bldg phone).

October 14, 2008 .... Via Webcast: 9 a.m. Eastern Daylight Savings Time ........... Office of Standards, Regulations and Variances 202–693– 

9440. 

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