[Federal Register Volume 73, Number 85 (Thursday, May 1, 2008)]
[Rules and Regulations]
[Pages 23953-23957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9377]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 204

[DoD-2006-OS-0005]
RIN 0790-AH93


User Fees

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: The Department of Defense is revising 32 CFR Part 204 to 
better align it with Office of Management and Budget (OMB) Circular A-
25, ``User Charges.'' This part provides guidelines to establish 
appropriate fees for authorized services supplied by Department of 
Defense organizations when such services provide special benefits to an 
identifiable recipient beyond those that accrue to the general public.

DATES: Effective Date: This rule is effective May 1, 2008.

FOR FURTHER INFORMATION CONTACT: Ms. Elaine Carpenter-Schmied, 703-697-
0859.

SUPPLEMENTARY INFORMATION: On January 26, 2006 (71 FR 4332), the 
Department of Defense published a proposed rule on user charges with a 
comment period ending May 11, 2006. Comments included updating sited 
directives, spelling out acronyms, and inserting punctuation. All 
relevant comments were accepted. However, the revision did not include 
a schedule of fees and rates because DoD Components were responsible 
for computing user fees. With the exclusion of the fee and rate 
schedule proposed rule 32 CFR Part 204 no longer had an impact on the 
public. Upon further review and discussions between White House 
Services and the Government Accountability Office, it was determined 
fees should be based on full cost or market price and the rule should 
specify the principles used to compute these values. The revision was 
completed in October 2007.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR Part 204 is a significant 
regulatory action. The rule has an annual effect to the economy of over 
$100 million.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that this rule does not contain a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any 1 year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 204 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. The rule being promulgated provides guidelines to 
establish appropriate fees for authorized services supplied by 
Department of Defense organizations when such services provide special 
benefits to an identifiable recipient beyond those that accrue to the 
general public.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 204 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

[[Page 23954]]

Executive Order 13132, ``Federalism''

    It has been certified that this rule does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 204

    Accounting, Armed forces, Government property.

0
Accordingly, 32 CFR part 204 is revised to read as follows:

PART 204--USER FEES

Sec.
204.1 Purpose.
204.2 Applicability.
204.3 Policy and procedures.
204.4 Responsibilities.
204.5 Fees.
204.6 Collections.
204.7 Legislative proposals.
204.8 Benefits for which no fee shall be assessed.
204.9 Schedule of fees and rates.

    Authority: 31 U.S.C. 9701.


Sec.  204.1  Purpose.

    This part implements the DoD program under Title 31, United States 
Code, section 9701 and OMB Circular No. A-25, ``User Charges,'' to 
establish appropriate fees for authorized services supplied by DoD 
organizations.


Sec.  204.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Combatant Commands, and the Defense Agencies (hereafter referred to 
collectively as ``DoD Components''). None of the provisions in this 
part should be construed as giving authority for the sale or lease of 
property, or the rendering of special services. Actions to convey such 
special benefits must be authorized by separate authority. This user 
fee policy is applicable except when other statutes or directives 
specifically direct other practices or procedures.


Sec.  204.3  Policy and procedures.

    (a) General. It is DoD policy not to compete unfairly with 
available commercial facilities in providing special services or in the 
sale or lease of property to private parties and agencies outside the 
Federal Government. However, when a service (or privilege) provides 
special benefits to an identifiable recipient, beyond those that accrue 
to the general public, a fee shall be imposed to recover the full cost 
to the Federal Government for providing the special benefit (or the 
market price) except as otherwise approved by the Under Secretary of 
Defense (Comptroller) (USD(C)) and authorized by the Director of OMB. A 
special benefit will be considered to accrue, and a user fee shall be 
imposed, when a Government service:
    (1) Enables the beneficiary to obtain more immediate or substantial 
gain or values (which may or may not be measurable in monetary terms) 
than those which accrue to the general public (e.g., receiving a 
patent, insurance, or guarantee provision, or a license to carry on a 
specific activity or business or various kinds of public land use); or
    (2) Provides business stability or contributes to public confidence 
in the business activity of the beneficiary (e.g., insuring deposits in 
commercial banks), or
    (3) Is performed at the request of or for the convenience of the 
recipient, and is beyond the services regularly received by other 
members of the same industry or group or by the general public (e.g., 
receiving a passport, visa, airman's certificate, or a Custom's 
inspection after regular duty hours).
    (b) Costing. (1) Except as provided in Sec.  204.3(c) and Sec.  
204.8, a user fee shall be imposed to recover the full cost to the 
Federal Government of providing the service, resource, or good when the 
Government is acting in its capacity as sovereign.
    (2) User fees shall be based on market prices (as defined in Sec.  
204.5(a)(4)) when the Government is not acting in its capacity as 
sovereign and is leasing or selling goods or resources, or is providing 
a service (e.g., leasing space in federally owned buildings). Under 
these business-type conditions, user fees need not be limited to the 
recovery of full cost and may yield net revenues.
    (3) User fees will be collected in advance of, or simultaneously 
with, the rendering of services unless appropriations and authority are 
provided in advance to allow reimbursable services.
    (4) Whenever possible, fees should be set as rates rather than 
fixed dollar amounts in order to adjust for changes in costs to the 
Government or changes in market prices of the good, resource, or 
service provided.
    (c) Exclusions. (1) The provisions of this part do not apply when 
other statutes or DoD issuances require different practices or 
procedures, such as for:
    (i) Morale, welfare, and recreation services to military personnel 
and civilian employees of the Department of Defense and other services 
provided according to Sec.  204.8.
    (ii) Sale or disposal of surplus property under approved programs 
(Chapter 5 of DoD 7000.14-R.)\1\
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    \1\ Copies of unclassified DoD issuances may be obtained at 
http://www.dtic.mil/whs/directives/.
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    (iii) Services furnished the general public relating to, or in 
furtherance of, the Armed Forces recruiting program.
    (iv) Services furnished to representatives of the public 
information media in the interest of public understanding of the Armed 
Forces.
    (v) Armed Forces participation in public events. Fees for such 
participation are governed by the provisions of DoD Instruction 
5410.19.
    (vi) Records made available to the public, under the Freedom of 
Information Act, pursuant to 32 CFR part 285. Fees for such record 
searches and copies of records are governed by 32 CFR part 286.
    (vii) Services furnished to non-Federal audio-visual media. Fees 
for such services are governed by the provisions of DoD Instruction 
5410.15.
    (viii) Government-developed computer programs released to non-
Federal customers. Fees for software packages are governed by DoD 
Instruction 7930.2.
    (ix) Pricing of performance by DoD Working Capital Fund activities 
shall be according to Volume 11B of DoD 7000.14-R.
    (x) Foreign Military Sales of Defense articles and services shall 
be according to Volume 15 of DoD 7000.14-R.
    (xi) Records made available to Privacy Act requesters shall be 
according to 32 CFR part 310.
    (2) User fees may be waived by the Head of a DoD Component when:
    (i) Furnishing of their service without fee is an appropriate 
courtesy to a foreign government or international organization, or 
comparable fees are set on a reciprocal basis with a foreign country.
    (ii) The Director of the OMB has approved a request for an 
exception. Such exceptions may be recommended when:
    (A) The cost of collecting the fees would represent an unduly large 
part of the receipts from the activity; or
    (B) Any other conditions exists that, in the opinion of the Head of 
the DoD Component or his designee, justifies the exception.

[[Page 23955]]

Sec.  204.4  Responsibilities.

    (a) The USD(C) shall develop and monitor policies governing user 
fees.
    (b) The Heads of the DoD Components, or designees, shall:
    (1) Identify each service or activity that may properly be the 
subject of a user fee under this part.
    (2) Determine the extent of the special benefit provided.
    (3) Apply the principles specified in Sec.  204.5(a) in determining 
full cost or market price.
    (4) Review the user fees biennially, to include:
    (i) Assurance that existing fees are adjusted to reflect 
unanticipated changes in costs or market values; and
    (ii) A review of all other programs to determine whether fees 
should be assessed for Government services or the user of Government 
goods or services. DoD Components should discuss the results of the 
biennial review of user fees and any resultant proposals in the Chief 
Financial Officers Annual Report required by the Chief Financial 
Officers Act of 1990.
    (5) Initiate exception actions outlined in Sec.  204.3(c)(2). All 
such actions shall be coordinated with the USD(C) prior to forwarding 
to the OMB.
    (i) Exceptions granted under Sec.  204.3(c)(2)(i) shall be renewed 
every 4 years to ensure conditions warrant their continuation.
    (ii) Exceptions granted under Sec.  204.3(c)(2)(ii) shall be 
resubmitted for approval to the OMB every 4 years when conditions 
warrant their continuation.
    (6) Maintain readily accessible records of:
    (i) The services or activities covered by this part.
    (ii) The extent of special services provided.
    (iii) The exceptions to the general policy of this part.
    (iv) The information used to establish fees and the specific 
methods used in their determination.
    (v) The collections from each user fee imposed.
    (7) Maintain adequate records of the information used to establish 
fees and provide them upon request to OMB for the evaluation of the 
schedules and provide data on user fees to OMB according to the 
requirements in Circular No. A-11.
    (8) Develop legislative proposals as outlined in Sec.  204.7 when 
there are statutory prohibitions or limitations on the assessment of 
user fees.


Sec.  204.5  Fees.

    (a) General. (1) All fees shall be based on full cost to the U.S. 
Government or market price, whichever applies.
    (2) ``Full cost'' includes all direct and indirect costs associated 
with providing a good, resource, or service. These costs are outlined 
in Volume 11A, Chapter 1, paragraph 010203 of DoD 7000.14-R.
    (3) Full cost shall be determined or estimated from the best 
available records, and new cost accounting systems shall not be 
established solely for this purpose.
    (4) ``Market price'' means the price for a good, resource, or 
service that is based on competition in open markets, and creates 
neither a shortage nor a surplus of the good, resource, or service.
    (i) When a substantial competitive demand exists for a good, 
resource, or service, its market price will be determined using 
commercial practices, for example:
    (A) By competitive bidding; or
    (B) By reference to prevailing prices in competitive markets for 
goods, resources, or services that are the same or similar to those 
provided by the Government (e.g., campsites or grazing lands in the 
general vicinity of private ones) with adjustments as appropriate that 
reflect demand, level of service, and quality of the good or service.
    (ii) In the absence of substantial competitive demand, market price 
will be determined by taking into account the prevailing prices for 
goods, resources, or services that are the same or substantially 
similar to those provided by the Government, and then adjusting the 
supply made available and/or price of the good, resource, or service so 
that there will be neither a shortage nor a surplus (e.g., campsites in 
remote areas).
    (5) Fees established in advance of performance shall be based on 
the estimated cost of performance. Projected amounts shall be reviewed 
biennially or whenever significant changes in cost or value occur.
    (6) Management controls (see DoD Instruction 5010.40) must be 
established to ensure fees are developed and adjusted, using current, 
accurate, and complete data, to provide reimbursement conforming to 
statutory requirements. These controls also must ensure compliance with 
cash management and debt collection policies according to Volume 5 of 
DoD 7000.14-R.
    (b) Information resources. The fees for services provided by data 
processing activities shall be determined by using the costs 
accumulated pursuant to requirements in OMB Circular A-130, 
``Management of Federal Information Resources.''
    (c) User fees for recurring services shall be established in 
advance, when feasible. The benefit of charging user fees must outweigh 
the cost of collecting the fees charged.
    (d) Lease or sale of property. Fees for lease or sale of property 
shall be based on the following:
    (1) Leases of military equipment or real estate. (i) In cases 
involving the lease or rental of military equipment, when there is no 
commercial counterpart, the fee will be based on the procedures 
provided in Volume 11A, Chapter 1, paragraph 010203.I of DoD 7000.14-R. 
The current interest rate in OMB Circular A-94 will be used in the 
computation of interest on investment in assets. In determining the 
value, consideration may be given to the responsibility of the lessee 
to assume the risk of loss or damage to the property and to hold the 
government harmless against claims or liabilities by the lessee or 
third parties.
    (ii) In cases involving real estate outgrants, the consideration 
for a lease shall be determined by appraisal of fair market rental 
value according to 10 U.S.C. 2667.
    (2) Sale of property. When there is legal authority to sell 
property to the public, the selling price of the property and related 
accessorial and administrative costs shall be computed according to 
Volume 11A, Chapter 1 of DoD 7000.14-R.


Sec.  204.6  Collections.

    (a) Collections of fees will be made in advance or simultaneously 
with the rendering of service unless appropriations and authority allow 
otherwise. The policies in this part, Volume 5 of DoD 7000.14-R, and 
DoD Instruction 5010.40, shall be used in accounting, controlling, and 
managing cash and debt collections.
    (b) Unless a statute provides otherwise, user fee collections will 
be credited to the general fund of the Treasury as miscellaneous 
receipts, as required by 31 U.S.C. 3302.


Sec.  204.7  Legislative proposals.

    (a) Legislative proposals that allow the DoD Component to retain 
collections may be appropriate when a fee is levied in order to finance 
a service intended to be provided on a substantially self-sustaining 
basis and thus is dependent upon adequate collections.
    (1) The authority to use fees credited to an appropriation is 
generally subject to limits set in annual appropriations language. 
However, it may be appropriate to request exemption from annual 
appropriations control, if a provision of the service is dependent on 
demand that is irregular or unpredictable (e.g., a fee to reimburse an

[[Page 23956]]

agency for the cost of overtime pay of inspectors for services 
performed after regular duty hours).
    (2) Legislative proposals that permit fees to be credited to 
accounts shall be consistent with the full-cost recovery guidelines 
contained in this part. Any fees in excess of full cost recovery and 
any increase in fees to recover the portion of retirement costs which 
recoups all (funded or unfunded) accrual costs not covered by employee 
contributions are to be credited to the general fund of the Treasury as 
miscellaneous receipts.
    (b) Where the retention of the collection is appropriate, the DoD 
Components(s) concerned may submit legislative proposals under 
applicable legislative procedures included in OMB Circular A-19. These 
procedures may be obtained from the Office of Legislative Counsel, 
General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600. 
Proposals to remove user fee restrictions or retain collections shall:
    (1) Define in general terms the services for which fees will be 
assessed and the pricing mechanism that will be used.
    (2) Specify whether fees will be collected in advance of, or 
simultaneously with, the provision of service unless appropriations and 
authority are provided in advance to allow reimbursable services.
    (3) Specify where collections will be credited. Legislative 
proposals should not normally specify precise fees. The user fee 
schedule should be set by regulation to allow for the administrative 
updating of fees to reflect changing costs and market values.


Sec.  204.8  Benefits for which no fee shall be assessed.

    (a) Documents and information requested by members of the Armed 
Forces is required by such personnel in their capacity as Service 
members.
    (b) Documents and information requested by members of the Armed 
Forces who are in a casualty status, or requested by their next of kin 
or legal representative.
    (c) The provisions of the address of record of a member or former 
member of the Armed Forces when the address is readily available 
through a directory (locator) service, and when the address is 
requested by a member of the Armed Forces or by a relative or a legal 
representative of a member of the Armed Forces, or when the address of 
record is requested by any source for the purpose of paying monies or 
forwarding property to a member or former member of the Armed Forces.
    (d) Services requested by, or on behalf of, a member or former 
member of the Armed Forces and civilian personnel of the Department of 
Defense (where applicable) or, if deceased, his or her next of kin or 
legal representative that pertain to the provision of:
    (1) Information required to obtain financial benefits regardless of 
the terms of separation from the Service.
    (2) Document showing membership and military record in the Armed 
Forces if discharge or release was under honorable conditions, except 
as shown in paragraphs (d)(1) and (d)(4) of this section.
    (3) Information relating to a decoration or award or required for 
memoralization purposes.
    (4) Information relating to the review or change in type of 
discharge or correction of records.
    (5) Personal documents, such as birth certificates, when such 
documents are required to be furnished by the member.
    (6) Services furnished free according to statutes or Executive 
Orders.
    (7) Information from or copies of medical and dental records or x-
ray films of patients or former patients of military medical or dental 
facilities, when such information is required for further medical or 
dental care, and requests for such data are submitted by an accredited 
medical facility, physician, or dentist, or requested by the patient, 
his or her next of kin, or legal representative. Other requests subject 
to the Privacy Act shall be according to 32 CFR part 310 (see Sec.  
204.3(c)(1)(xi) of this part).
    (8) Services requested by, and furnished to, a member of Congress 
for official use.
    (9) Services requested by state, territorial, county, or municipal 
government, or an agency thereof, that is performing a function related 
to or furthering a DoD objective.
    (10) Services requested by a court, when such services will serve 
as a substitute for personal court appearance of a military or civilian 
employee of the Department of Defense.
    (11) Services requested by a nonprofit organization that is 
performing a function related to or furthering an objective of the 
Federal Government or is in the interest of public health and welfare, 
including education.
    (12) Services requested by donors in connection with the conveyance 
or transfer of a gift to the Department of Defense.
    (13) Occasional and incidental services (including requests from 
residents of foreign countries), not requested often, when it is 
determined administratively that a fee would be inappropriate for the 
occasional and incidental services rendered.
    (14) Administrative services offered by reference or reading rooms 
to inspect public records, excluding copies of records or documents 
furnished.
    (15) Services rendered in response to requests for classification 
review of DoD classified records, submitted under Executive Order 
12065, ``National Security Information,'' and implemented by DoD 
5200.1-R. Such services consist of the work performed in conducting the 
classification review or in granting and completing an appeal from a 
denial of declassification following such review.
    (16) Services of a humanitarian nature performed in such emergency 
situations as life-saving transportation for non-Armed Forces patients, 
search and rescue operations, and airlift of personnel and supplies to 
a disaster site. This does not mean that inter- and intra-governmental 
agreements to recover all or part of costs shall not be negotiated. 
Rather, it means the recipients or beneficiary will not be assessed a 
``user fee''.


Sec.  204.9  Schedule of fees and rates.

    (a) Schedule of fees and rates. (1) This schedule applies to 
authorized services related to copying, certifying, and searching 
records rendered to the public by DoD Components, except when those 
services are excluded or excepted from charges under Sec.  204.3(c) or 
the ``Benefits for Which No Fee Shall Be Assessed'' included in Volume 
11A, Chapter 4, Appendix 1 of DoD 7000.14-R. All other fees will be 
based on full cost or market price.

                              Fee Schedule
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                  Service                               Rate
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(i) Copies
  (Standard size paper up to 8\1/2\ x 14).  $0.13 per page.
(ii) Search and Review
  (A) Managerial..........................  $13.15 per \1/4\ hour;
                                             $52.60 per hour.
  (B) Professional........................  $9.05 per \1/4\ hour; $36.20
                                             per hour.
  (C) Clerical............................  $5.20 per \1/4\ hour; $20.80
                                             per hour.
(iii) Other
  (A) Microfiche..........................  $0.08 per page.
  (B) Computer and magnetic tapes.........  $25.00 each.
  (C) Computer diskettes..................  $1.25 each.
  (D) Other services (computer time,        Actual Cost.
   special mailing).
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[[Page 23957]]

    (2) Fees will not be charged if the total amount to process your 
request is $30.00 or less.
    (b) Criteria for estimating cost of computerized records:
    (1) Costs for processing a data request will be calculated using 
the full cost method as referenced in Sec.  204.5.
    (2) Itemized listing of operations required to process the job will 
be maintained (i.e., time for central processing unit, input/output 
remote terminal, storage, plotters, printing, tape/disk mounting, etc.) 
with associated costs.
    (3) Mailing costs for services (DHL, Express Mail, etc.) when 
request specifically specifies a means more expensive than first class 
mail.

    Dated: April 24, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-9377 Filed 4-30-08; 8:45 am]
BILLING CODE 5001-06-P