Adjustment of Small Volume Application Fees of the Immigration Examinations Fee Account [64 FR 69883] [FR68-99]

DOCUMENT NUMBER: FR68-99

FEDERAL REGISTER CITE: 64 FR 69883

DATE OF PUBLICATION: December 15, 1999

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 1933-98; AG Order No. 2282-99]

RIN 1115-AF10

Adjustment of Small Volume Application Fees of the Immigration

Examinations Fee Account

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the Immigration and Naturalization Service's (Service) fee schedule of the Immigration Examinations Fee Account (IEFA) for certain small volume immigration adjudication and naturalization applications and petitions (Forms I-360, N-300, N-336, and N-470). Fees collected from persons filing these applications and petitions are deposited into the IEFA and used to fund the cost of processing immigration adjudication and naturalization applications and petitions and associated support services. The Service has determined that the current fees for these fou r small volume applications and petitions need to be adjusted. Of the four small volume applications and petitions, the fees for two are being increased and two are being decreased. This rule is necessary to ensure that the fees charged accurately reflect the cost of processing immigration adjudication and naturalization applications and petitions.

DATES: This final rule is effective January 14, 2000.

FOR FURTHER INFORMATION CONTACT: Paul Schlesinger, Branch Chief, Fee Policy and Rate Setting Branch, Office of Budget, Immigration and Naturalization Service, on (202) 616-2754, 425 I Street, NW., Room 6240, Washington, DC 20536. Detailed documentation of the rate-setting process is available upon request by calling (202) 616-2754.

SUPPLEMENTARY INFORMATION:

What Legal Authority Does the Service Have To Charge Fees?

1. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Acts of 1989 and 1991

The Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1989 (Pub. L. 100-459), authorized the Service to prescribe and collect fees to recover the cost of providing certain immigration adjudication and naturalization services. Public Law 100-459 also authorized the establishment of the IEFA in the Treasury of the United States. All revenue from fees collected for the provision of immigration adjudication and naturalization services are deposited in the IEFA an d "remain available until expended to the Attorney General to reimburse any appropriation the amount paid out of such appropriation for expenses in providing immigration adjudication and naturalization services and the collection, safeguarding and accounting for fees * * *." 8 U.S.C. 1356(n).

In subsequent legislation, the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Acts, 1991 (Pub. L. 101-515), Congress further provided that "fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any a dditional costs associated with the administration of the fees collected." 8 U.S.C. 1356(m).

2. The Independent Offices Appropriation Act, 1952

The Service also employs the authority granted through the Independent Offices Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701 (Pub. L. 82-137), commonly referred to as the "user fee statute," to develop its fees. The user fee statute directs Federal agencies to identify services provided to unique segments of the population and to charge fees for those services, rather than supporting such services through general tax revenues. The IOAA states that "[i]t is the sense of Congress that each service or thing o f value provided by an agency * * * to a person * * * is to be self-sustaining to the extent possible." 31 U.S.C. 9701(a). The IOAA further provides that charges for such services or things of value should be based on "the costs to the Government; the value of the service or thing to the recipient; the public policy or interest served; and other relevant facts." 31 U.S.C. 9701(b).

3. The Chief Financial Officers Act of 1990

The Service must also conform to the requirements of the Chief Financial Officers Act of 1990 (CFO Act), Pub. L. 101-576. Section 205(a)(8) of the CFO Act requires each agency's Chief Financial Officer to "review, on a biennial basis, the fee, royalties, rents, and other charges imposed by the agency for services and things of value it provides, and make recommendations on revising those charges to reflect costs incurred by it in providing those services and things of value." 31 U.S.C. 902(a)(8).

Did the Service Publish a Proposed Rule To Adjust the Fees?

Yes. On May 17, 1999, the Service published a proposed rule in the Federal Register at 64 FR 26698, which proposed to adjust the fee schedule of the IEFA for certain small volume immigration adjudication and naturalization applications and petitions (Forms I-360, N-300, N-336, and N-470). The public was provided with a 60-day comment period which ended on July 16, 1999. The Service did not receive any comments on the proposed rule.

Accordingly, the fees for the following forms will be adjusted as follows:

Form	Old Fee	New Fee

I-360.............................................	$80.00	$110.00
N-300............................................	75.00	50.00
N-336............................................	110.00	170.00
N-470............................................	115.00	80.00

The following is a discussion of the standards and guidelines that were used to determine the fee adjustments.

What Federal Cost Accounting and Fee Setting Standards and Guidelines Were Used?

1. Office of Management and Budget (OMB) Circular No. A-25, User Charges

When developing fees for services, the Service adheres to the principles contained in OMB Circular Number A-25, User Charges. OMB Circular A-25 states that, as a general policy, a "user charge * * * will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public."

The guidance contained in OMB Circular A-25 is applicable to the extent that it is not inconsistent with any Federal statute. Specific legislative authority to charge fees for services takes precedence over OMB Circular A-25 when the statute expressly designates "who pays the charge; how much is the charge; [or] where collections are deposited." When a statute does not address issues of how to calculate fees or what costs to include in the fee calculation, Federal agencies must follow the principles and g uidance contained in OMB Circular A-25 to the fullest extent allowable. The guidance directs Federal agencies to charge the "full cost" of providing services when calculating fees that provide a specific benefit to recipients. OMB Circular A-25 defines full cost as "all direct and indirect costs to any part of the Federal Government of providing a good, resource, or service." These costs include, but are not limited to, an appropriate share of:

* Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement;

* Physical overhead, consulting, and other indirect costs including material and supply costs, utilities, insurance, travel and rents or imputed rents on land, buildings, and equipment;

* Management and supervisory costs; and

* The costs of enforcement, collection, research, establishment of standards, and regulation.

2. Federal Accounting Standards Advisory Board Statement of Federal Financial Accounting Standards No. 4: Managerial Cost Accounting Concepts and Standards for the Federal Government

When developing fees for services, the Service also adheres to the cost accounting concepts and standards recommended by the Federal Accounting Standards Advisory Board (FASAB). The FASAB was established in 1990, and its purpose is to recommend accounting standards for the Federal Government. In developing its recommendations, the FASAB considers the financial and budgetary information requirements of the Congress, executive agencies, and other users of Federal financial information.

How Did the Service Determine the Full Cost of Processing Immigration Adjudication and Naturalization Applications?

1. Phase I--Large Volume Applications/Petitions

The Service conducted a review of the IEFA in two phases to determine the full cost of processing immigration adjudication and naturalization applications. Phase I sought to develop a more consistent and reliable cost accounting methodology focusing on 30 large volume applications and petitions (volumes in excess of 10,000 per year). This resulted in a proposed rule, which detailed the Activity Based Costing (ABC) approach and methodology used, and proposed adjusted fees for 30 immigration adjudication and naturalization petitions based on the determination of the full cost to the Service to perform the required activities. The proposed rule was published in the Federal Register on January 12, 1998, at 63 FR 1775. The final rule was published in the Federal Register on August 14, 1998, at 63 FR 43604.

2. Phase II--Small Volume Applications/Petitions

In a continuing effort to refine and build upon the methodology and results of the first study, the Service implemented Phase II of the IEFA fee study. The primary objective was to add more precision to the cost model for certain small volume applications. For the purposes of the IEFA studies, small volume applications were defined as those applications and petitions that have annual volumes of less than 10,000 application and petition receipts. The Service selected the ABC approach because it is an operati onally-based technique that focuses on work activities performed that produce an output and consume resources. Table 1 provides the small volume applications that are the subject of

this final rule.

TABLE 1.--SMALL VOLUME APPLICATIONS

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Form Description

I-360..........................	Petition for Amerasian, Widow(er), or
	Special Immigrant.
N-300.........................	Application to File Declaration of
	Intention.
N-336.........................	Request for Hearing on a Decision in
	Naturalization Procedures.
N-470.........................	Application to Preserve Residence for
	Naturalization Purposes.

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