[Federal Register Volume 73, Number 188 (Friday, September 26, 2008)]
[Proposed Rules]
[Pages 55794-55800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22710]


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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.

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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:
    <bullet> 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.
    <bullet> 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 
non-criminal justice name-based checks for such purposes as 
immigration, Federal Government employment and security clearance 
processes. The FBI does not charge a fee for NNCP services performed 
for criminal justice purposes, which are supported by federal 
appropriations.

Reasons for the Proposed Fee Schedule

    While the RMD has automated some portions of the NNCP process, the 
current fees, which have not changed since 1991, do not reflect the 
expense of personnel time and other costs involved in the analysis of 
the pertinent information. As explained below, the NNCP disseminates 
information from the FBI's Central Records System (CRS) in response to 
requests submitted by

[[Page 55795]]

federal agencies, Congressional committees, the federal judiciary, 
friendly foreign police and intelligence agencies. The CRS contains the 
FBI's administrative, personnel, and investigative files. The NNCP was 
established under Executive Order No. 10450, issued on April 27, 1953, 
18 FR 2489, which mandated National Agency Checks (NAC) in the 
background investigation of prospective Government employees. The FBI 
performs the primary NAC on all U.S. government employees and provides 
information to more than 40 federal agencies based on fiscal year (FY) 
2005 data. The information from the CRS, disseminated under the NNCP, 
is evaluated by governmental agencies before bestowing privileges such 
as visas, naturalization or work authorizations under the Immigration 
and Nationality Act, Public Law 82-414 as amended, and other federal 
laws.
    The CRS consists of administrative, applicant, criminal, personnel, 
and other files arranged by subject matter relating to an individual, 
an organization, or other matter. The CRS records are maintained at FBI 
Headquarters and FBI Field Offices. The CRS can be accessed through the 
General Indices, which are arranged in alphabetical order by subject, 
such as the names of individuals and organizations.
    In 1995, the FBI implemented the Automated Case Support (``ACS'') 
system to access 105 million records from previous automated systems. 
The ACS consists of three automated applications that support case 
management functions for all investigative and administrative cases. 
The Investigative Case Management application is used to open, assign 
and track leads and close investigative and administrative cases. The 
Electronic Case File serves as the central electronic repository for 
the FBI's official text-based documents. The Universal Index (UNI) 
provides a complete subject and case index to approximately 99 million 
records in investigative and administrative cases. The UNI lists the 
names of individuals or entities, with identifying information such as 
date of birth and social security number.
    The processing of an NNCP search begins with the search of a 
person's name in the UNI to locate all instances of the person's name 
and identifying information in the main and reference files. A main 
file concerns the subject of an FBI investigation, and a reference file 
concerns an individual whose name appears in part of an FBI 
investigation, such as an associate or witness. Over 60 percent of the 
initial NNCP electronic checks in UNI yield no identifiable information 
regarding the person and are termed ``No record,'' and that information 
is reported to the requesting agency. If the search of UNI yields 
possibly identifiable information, the NNCP request requires additional 
review and an additional manual name search is conducted. If 
identifiable information is located, the records are retrieved and 
reviewed for possible derogatory information concerning the subject of 
the NNCP request. The FBI forwards a summary of the derogatory 
information to the requesting agency.
    By letter, dated August 30, 2007, to all RMD customers using the 
NNCP for non-criminal justice purposes, the FBI established the 
proposed fee schedule on an interim basis, effective October 1, 2007. 
That is the same process the FBI has followed in implementing changes 
in fees for other non-criminal justice identification services. 
Although the proposed rule will establish the user fees by notice and 
comment rulemaking, RMD customers were advised of the revised fees 
prior to the start of FY 2008, thereby allowing them to prepare for the 
changes.
    The FBI will continue to analyze its costs in processing searches 
in the NNCP and will review related fee charges periodically, as 
recommended by Office of Management and Budget Circular No. A-25, (OMB 
Circular A-25) User Charges. The proposed rule advises that adjustments 
to the FBI's fees will be announced by notice in the Federal Register.

III. Fee Calculation

Cost Accounting Standards and Guidelines Used To Calculate the Fee

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

Calculation of the Revised Fee

    The FBI hired a contractor, Grant Thornton LLP., 333 John Carlyle 
Street, Alexandria, Virginia 22314, (Grant Thornton) to conduct an 
independent analysis of pertinent costs and to recommend a revised fee 
schedule for the NNCP checks conducted by RMD. Referencing OMB Circular 
A-25; the Statement of Federal Financial Accounting Standards (SFFAS-
4): Managerial Cost Accounting Concepts and Standards for the Federal 
Government; and other relevant financial management directives, Grant 
Thornton developed a cost accounting methodology and related cost 
models based upon the concept and principles of activity-based costing 
(ABC). The cost models identified the total resource costs associated 
with the services provided to RMD customers, including personnel (e.g., 
salary and benefits), non-labor (e.g., material, equipment, and 
facility) and overhead (e.g., management and administration) costs, and 
assigned or allocated these costs to the various service categories 
using relevant cost drivers. The cost drivers were selected primarily 
for their strong cause-effect linkages between the resources and the 
activities and services that consumed them. The unit costs for RMD's 
NNCP services incorporated in this study were derived from a robust 
costing network that is based on the principles of ABC, a widely 
recognized and accepted cost accounting methodology. Grant Thornton 
generated the revised fee schedule based upon these unit costs.
    The methodology focused on developing full cost information for 
NNCP's activities and services to provide a basis for the fee 
recommendations. Generally accepted standards and regulatory guidance 
were followed, as specified by the Federal Accounting Standards 
Advisory Board's

[[Page 55796]]

(FASAB) Statement Number 4: Managerial Cost Accounting Concepts and 
Standards for the Federal Government and the Office of Management and 
Budget's (OMB) Circular A-25: User Charges. FY 2005 costs were used to 
develop baseline cost information, and additional estimated costs and 
adjustments were included to estimate resources for FY 2008 and FY 
2009. The projected cost information served as the basis for the fee 
recommendations.
    Grant Thornton developed their cost accounting methodology using 
the following steps for the non-automation portion of the fee.
    <bullet> NNCP services and activities performed for name checks 
were defined.
    <bullet> Operational labor costs were identified and assigned to 
activities and then to services.
    <bullet> Support labor costs were identified and assigned to 
activities and then to services.
    <bullet> Non-labor costs, including appropriate overhead and 
support costs, were identified and assigned to activities and then to 
services.
    <bullet> Cost estimates were made for FY 2008, when the revised 
user fees are expected to be implemented.
    <bullet> Transaction volumes and trends were analyzed to predict 
appropriate transaction volumes for fiscal year FY 2008.
    <bullet> Finally, using the projected FY 2008 costs and the 
projected FY 2008 transaction volumes, the projected unit costs for 
each service were calculated. The recommended user fees were based on 
these projected unit costs.
    As explained above, under Public Law 101-515, the FBI is also 
authorized to charge an additional amount for the automation of 
fingerprint identification and criminal justice information services 
and associated costs. Although NNCP fees have not included this 
additional amount to date, the FBI considers the service provided by 
the NNCP as being a criminal justice information service. The costs 
associated with enhancing the NNCP, including the automation efforts, 
were identified and included in the name check fee study reflected in 
this NPRM. The FBI is therefore proposing to add an automation 
surcharge to the NNCP fee pursuant to Public Law 101-515. The estimated 
costs for these automation efforts were based on best available 
information regarding planned IT investments. The projected FY 2008 and 
FY 2009 volumes were then used to calculate the unit costs for this 
portion of the fee. Once the unit costs were calculated, Grant Thornton 
generated the revised fee schedule. The FBI then independently reviewed 
the Grant Thornton recommendations, compared them to current fee 
calculations and plans for future services, and determined that the 
revised schedules were both objectively reasonable and in consonance 
with the underlying legal authorities.

Overview of the Costs Included in the Fee Calculation

    The fee calculation was produced by gathering the labor and non-
labor costs of those divisions of the FBI that directly or indirectly 
support the provision of the NNCP name check services, and then using 
various drivers to assign those costs to the identified activities. The 
activities were then assigned to the specific name check service. The 
ABC model examined in detail only those costs which were related to the 
name check services. These services included both the criminal justice 
and law enforcement and the non-criminal justice identification 
services performed by the NNCP. The discussion below is limited to 
those costs in the ABC model which were assigned to name check services 
that are supported by the user fees. In other words, even though the 
ABC model calculated unit costs for all NNCP name checks, the costs for 
processing criminal justice name checks will not be discussed in this 
regulation since they are funded with appropriations and not with user 
fees.
    The costs for providing the fee-supported name check services 
include the personnel costs for both direct and indirect support, as 
well as non-labor costs such as travel, training, rent, equipment, 
utilities, printing, contract support, and supplies. In addition, 
depreciation for existing non-automation assets were included per OMB 
Circular A-25 guidance. Finally, portions of the FBI costs for workers 
compensation, unemployment compensation, and the judgment fund used to 
pay judgments against the United States where appropriations have not 
otherwise been provided were included. These costs were derived from 
the FBI financial systems and other relevant information provided by 
FBI personnel. The FY 2008 predicted costs were obtained by adding an 
inflation factor for labor and other non-labor expenses and identifying 
other expected changes in cost. The OMB pay raise and inflation factors 
provided in OMB Circular A-11, Preparation, Submission, and Execution 
of an Agency Budget, were used. The costs associated with providing the 
services do not include any of the automation costs which instead were 
based on capital investment planning for the automation portion of the 
fee described below. The costs for the additional charge for automation 
were based on the most recent NNCP estimates for planned systems 
automation and enhancement.

IV. Revised Fee Schedule

Proposed Changes to the Fee Schedule

    The current NNCP fee schedule services are:
    <bullet> Electronic (Batch Processed)
    <bullet> File Review and Analysis
    <bullet> Manual (Paper-Based Request)
    <bullet> 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:
    <bullet> Electronic (Batch Processed)
    <bullet> File Review/Analysis (Routine)
    <bullet> 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:
    <bullet> Reflects difference in cost. There is a significant 
difference between the unit cost of automated batch processing and file 
review and analysis. The recommended fee structure reflects this 
difference by charging a separate fee for these two phases of the name 
check process.

[[Page 55797]]

    <bullet> 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.
    <bullet> 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.
    <bullet> 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:
    <bullet> Costs to the Government
    <bullet> Value of the service or thing to the recipient
    <bullet> Public policy or interest served
    <bullet> Other relevant facts
    Regarding the value criterion, requests that receive expedited 
processing receive higher value when compared to those that receive 
routine processing. The expedited processing fee accounts for this 
added value by charging a higher fee because the request receives 
preferential treatment and is processed in a shorter period of time. 
Consideration was given to the difference in processing time for 
routine and expedited requests to calculate the expedite fee. This data 
measured the average number of days involved in each type of request 
from the date received to the date finalized. This difference in 
processing time served as the basis for adjusting the fees for routine 
and expedited processing.

Detail of the Costs Used To Calculate the Fee

    The costs were calculated based on the cost of providing NNCP name 
checks using the ABC model constructed by Grant Thornton. The costs 
include labor costs, non-labor costs (including unfunded personnel and 
judgment fund costs), automation costs; and general overhead and 
support costs. These costs are discussed in more detail below.
    The cost structure reflects the type of cost and organizational 
structure of the NNCP and other FBI units involved in providing name 
check services. The NNCP costs are comprised of the following 
categories:
    Labor--includes personnel compensation (salary and benefits) for 
direct costs.

------------------------------------------------------------------------
                         Center                               FY2008
------------------------------------------------------------------------
Name Check Center.......................................      $9,982,910
Other Records Management Units..........................         908,046
Field Office Support....................................       8,278,415
Information Technology Support..........................         233,569
Finance Division Support................................          64,247
Office of General Counsel...............................       2,535,942
Document Scanning Support...............................       2,923,911
                                                         ---------------
    Total...............................................      24,927,040
------------------------------------------------------------------------

    Non-labor includes direct and indirect non-labor expense data for 
the Name Check and RMD front office, contractor support, and 
depreciation.

------------------------------------------------------------------------
                         Center                               FY2008
------------------------------------------------------------------------
Name Check/RMD..........................................      $2,226,367
Batch Processing Enhancement............................         310,000
Contractor Support......................................      12,318,813
Depreciation/Equipment Replacement......................         115,965
Document Scanning/Consumables...........................       1,836,257
                                                         ---------------
    Total...............................................      16,807,402
------------------------------------------------------------------------

    Bureau overhead/support includes indirect costs to provide joint or 
common services to NNCP.

------------------------------------------------------------------------
                         Center                               FY2008
------------------------------------------------------------------------
Office of the Chief Information Officer.................      $1,579,600
Human Resources.........................................         62,2626
Finance.................................................          85,428
Federal Employees' Compensation Act.....................          49,446
Judgment Fund...........................................           7,005
Security................................................         445,185
Telecommunications......................................         196,212
Inspection..............................................          52,361
Rent....................................................       2,146,320
Training and Development................................          11,556
Shipping................................................         101,264
                                                         ---------------
    Total...............................................       4,736,639
------------------------------------------------------------------------

Additional Charge for Automation

    The FBI is authorized by law (Pub. L. 101-515) to charge an 
additional amount for each name check to defray expenses for automation 
and associated costs. Under this authority, the additional amount may 
be placed in a separate account and retained until expended. The 
proposed amount of the additional charge is currently estimated to be 
$1.00 per name check. The additional amount was calculated by dividing 
the estimated two-year total cost of planned Information Technology 
(IT) investments by the estimated two-year volume of name check 
requests. Current estimates total approximately $7.2 million to be 
invested in system enhancements during FY 2008 and FY 2009. The tables 
below provide more detailed information on the planned IT investments. 
The total is divided by an estimated 2-year volume of 7.15 million name 
check requests to arrive at an additional amount of $1.00 per name 
check.

                               Summary of Spending for Project (Investment) Stages
----------------------------------------------------------------------------------------------------------------
                                                       Fiscal year 2008    Fiscal year 2009          Total
----------------------------------------------------------------------------------------------------------------
Planning............................................          $1,200,000                  $0          $1,200,000
Acquisition.........................................           3,000,000           3,000,000           6,000,000
                                                     -----------------------------------------------------------
    Total...........................................           4,200,000           3,000,000           7,200,000
----------------------------------------------------------------------------------------------------------------


[[Page 55798]]

Volumes Used To Calculate the Fee

    The unit cost and proposed fees are based on the following 
projected volumes for FY 2008:

------------------------------------------------------------------------
                                                              Projected
                      Product/service                           volume
------------------------------------------------------------------------
Electronic (Batch Process).................................    3,471,638
File Review/Analysis (Routine).............................    1,186,891
File Review/Analysis (Expedited)...........................      209,451
------------------------------------------------------------------------

    These projections were based on analysis of FY 2005 and FY 2006 
workload volume, along with expected workload increases for FY 2008. 
Significant factors that influenced the projections were continued work 
on pending cases and expected workload increase from Homeland Security 
Presidential Directive (HSPD)--12 requirements.
    Projected costs and workload were used to calculate the proposed 
fees provided in the table below. The fees shown below include the 
additional $1.00 charge previously discussed. Some NNCP name checks 
(criminal justice and law enforcement) can not be billed to customers, 
and the revenue estimates provided below are based on estimated 
billable volume. The billable volume and revenue estimates are based on 
the following assumptions:
    <bullet> 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.
    <bullet> 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.
    <bullet> Unit costs are rounded up to the next $0.25.

----------------------------------------------------------------------------------------------------------------
                                                                   Annual billable
                         Product/service                                volume          Fee         Revenue
----------------------------------------------------------------------------------------------------------------
Electronic (Batch Process)......................................         1,1918,080     $1.50         $2,877,120
File Review/Analysis (Routine)..................................          1,008,857     29.50         29,761,282
File Review/Analysis (Expedited)................................            178,033     56.00          9,969,848
                                                                 -----------------------------------------------
    Total.......................................................  .................  ........         42,608,250
----------------------------------------------------------------------------------------------------------------

    The following table shows the amount that each cost category 
(labor, non-labor, and overhead/support) contributes to the fee. The 
cost of batch processing is not included in the subtotal unit cost for 
File Review/Analysis; however, batch processing is performed prior to 
the File Review/Analysis service and is included in the proposed fee. 
This table also shows the adjustment made for the expedited fee.

----------------------------------------------------------------------------------------------------------------
                                          Electronic  (batch      File review/analysis     File review/analysis
       Cost category/adjustment                process)                (routine)                (expedite)
----------------------------------------------------------------------------------------------------------------
Labor................................                    $0.21                   $17.33                   $17.33
Non-Labor............................                     0.04                    11.71                    11.71
Overhead/Support.....................                     0.25                     2.98                     2.98
                                      --------------------------------------------------------------------------
    Subtotal Unit Cost...............                     0.50                    32.02                    32.02
Expedite Amount......................                      N/A                  ($4.05)                    22.27
                                      --------------------------------------------------------------------------
    Adjusted Unit Cost...............                     0.50                    27.97                    54.30
Round up to $0.25....................                     0.00                     0.03                     0.21
Batch Processing.....................                      N/A                     0.50                     0.50
Additional Charge....................                     1.00                     1.00                     1.00
                                      --------------------------------------------------------------------------
    Proposed Fee.....................                     1.50                    29.50                    56.00
----------------------------------------------------------------------------------------------------------------

    As noted above, the FBI established this proposed fee schedule on 
an interim basis, effective October 1, 2007. The following table shows 
the amounts by which the fees were changed. Fee classes remained 
essentially the same, with the exception that manual submissions and 
expedited processing requests were consolidated into a single class. 
Under the interim fee schedule, the fee was increased only 10 cents for 
users submitting electronic requests that are limited to batch 
processing (from $1.40 to $1.50). Such users constituted more than 60 
percent of the billable name checks at that time. The fee increases for 
name checks involving non-electronic submissions and other special 
services were more substantial because of the higher cost for 
processing manual submissions and the cost for expediting responses 
ahead of routine transactions.

                                             Summary of Fee Changes
----------------------------------------------------------------------------------------------------------------
                                                                                                     Total fee
                             Service                               Previous fee    Proposed fee      increase
----------------------------------------------------------------------------------------------------------------
Electronic Submission
Batch Process Only..............................................           $1.40           $1.50           $0.10
Batch + File Review.............................................           10.65           29.50           18.85
Manual Submission...............................................           12.00           56.00           44.00
Expedited Submission............................................           22.65           56.00           33.35
----------------------------------------------------------------------------------------------------------------


[[Page 55799]]

    The FBI will continue to analyze its costs and will review related 
fee charges periodically, as recommended by Office of Management and 
Budget Circular No. A-25, User Charges (OMB Circular A-25). The 
proposed rule advises that future adjustments to the FBI's fees will be 
announced by notice in the Federal Register.

V. Administrative

Consultations With Interested Federal Agencies

    The FBI has provided information about this proposed rule to the 
largest three customers by volume of submissions, the United States 
Citizenship and Immigration Services, the Office of Personnel 
Management, and the Department of State. The FBI will develop standards 
of performance and timeliness with these three federal customers and 
provide performance information against the standards. The FBI will 
develop plans for management action in the event the standards agreed 
upon are not met, working with customer agencies. As appropriate, the 
FBI may pursue similar arrangements with its other federal customers.

Effective Date for the New Fees

    The proposed rule explains the methodology used to calculate the 
FBI revised fees, provides a proposed fee schedule, and advises that 
future fee adjustments will be made by notice published in the Federal 
Register. After public comment, a final rule and notice of the final 
fee schedule will be published concurrently in the Federal Register. 
This new schedule will be put into effect 60 days following publication 
of the notice

Notice of the New Fee Schedule

    Any changes to the Fee Schedule will be published in the Federal 
Register.

VI. Regulatory Certifications

Regulatory Flexibility Act

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires the agency to ``prepare and make 
available for public comment an initial regulatory flexibility 
analysis'' which will ``describe the impact of the proposed rule on 
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an 
agency to certify, in lieu of preparing an analysis, that the proposed 
rulemaking is not expected to have significant economic impact on a 
substantial number of small entities.
    This proposed rule does not directly or indirectly impact any small 
entity, as defined by the RFA to include small businesses, small 
organizations, and small governmental jurisdictions. The fees for 
providing name-based checks of the FBI Central Records System are 
imposed upon the Federal agencies authorized to request these checks, 
therefore, there is no direct or indirect impact on small entities, as 
federal agencies do not fall within the definition of a small entity. 
Accordingly, the Director of the FBI hereby certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities.

Executive Order 12866 (Regulatory Planning and Review)

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

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13132 (Federalism)

    This proposed rule will not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The fees for providing these name-based 
checks for non-criminal justice purposes are imposed upon the 
individual subject of the background check or are absorbed by the 
federal agencies submitting the requests. Therefore, in accordance with 
Executive Order 13132, it is determined that this rule has no 
federalism implications and does not warrant the preparation of a 
Federalism Assessment.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

List of Subjects in 28 CFR Part 20

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

    Accordingly, for the reasons set forth in the preamble, part 20 of 
chapter I of Title 28 of the Code of Federal Regulations is amended as 
follows:

PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS

    1. The authority citation for part 20 is revised to read as 
follows:

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

    2. Section 20.3 is amended by adding paragraphs (t) and (u) to read 
as follows:


Sec.  20.3  Definitions.

* * * * *
    (t) Central Records System or CRS encompasses all centralized 
records of FBI Headquarters, field offices and Legal Attache offices. 
See the CRS Privacy Act System Notice periodically published in the 
Federal Register for further details.
    (u) National Name Check Program or NCP is responsible for 
disseminating information from the FBI CRS in response to requests 
submitted by federal agencies.
    3. Section 20.30 is revised to read as follows:


Sec.  20.30  Applicability.

    The provisions of this subpart of the regulations apply to the III 
System, the FIRS, and the CRS, and to duly authorized local, state, 
tribal, federal, foreign, and international criminal justice agencies 
to the extent that they utilize the services of the III System, the 
FIRS or the CRS. This subpart is applicable to both manual and 
automated criminal history records.

[[Page 55800]]

    4. Section 20.31 is amended by adding paragraphs (e) and (f) to 
read as follows:


Sec.  20.31  Responsibilities.

* * * * *
    (e) The FBI may routinely establish and collect fees for non-
criminal justice identification services as authorized by federal law. 
These fees apply to federal, state and any other authorized entities 
requesting name checks for non-criminal justice purposes.
    (1) The Director of the FBI shall review the amount of the fee 
periodically, but not less than every four years, to determine the 
current cost of processing name checks for non-criminal justice 
purposes.
    (2) Fee amounts and any revisions thereto shall be determined by 
current costs, using a method of analysis consistent with widely 
accepted accounting principles and practices, and calculated in 
accordance with the provisions of 31 U.S.C. 9701 and other federal law 
as applicable.
    (3) Fee amounts and any revisions thereto shall be published as a 
notice in the Federal Register.
    (f) The FBI will collect a fee for providing non-criminal name-
based background checks of the FBI Central Records System through the 
National Name Check Program pursuant to the authority in Public Law 
101-515 and in accordance with paragraphs (e)(1), (2) and (3) of this 
section.

    Dated: September 18, 2008.
Robert S. Mueller, III,
Director, Federal Bureau of Investigation.
 [FR Doc. E8-22710 Filed 9-25-08; 8:45 am]
BILLING CODE 4410-02-P