[Federal Register Volume 59, Number 65 (Tuesday, April 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8045]


[[Page Unknown]]

[Federal Register: April 5, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[AG Order No. 1863-94]

 

Costs of Incarceration

AGENCY: Department of Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule provides for the collection and 
establishment of a fee to cover the cost of incarceration of inmates 
committed to the custody of the Attorney General, and for the further 
administration of this procedure by the Director, Bureau of Prisons. 
This rule is promulgated to implement newly enacted statutory authority 
on recovering the costs of incarceration. The rule also is intended to 
help ensure the continued efficient operation of federal correctional 
institutions, including the provision of beneficial programming for 
inmates.

DATES: Comments must be submitted by May 5, 1994.

FOR FURTHER INFORMATION CONTACT:
Roy Nanovic, Office of General Counsel, Bureau of Prisons, HOLC room 
754, 320 First Street, NW., Washington, DC 20534, telephone (202) 514-
6655.

SUPPLEMENTARY INFORMATION: On June 28, 1993, the Department of Justice 
published a proposed rule, to be codified at 28 CFR part 505, 
establishing procedures for the assessment and collection of a fee to 
cover the costs of incarceration for federal inmates. (58 FR 34541) In 
response to public comment and for reasons of administrative 
management, the Department is publishing those provisions relating to 
statutory authority, applicability, and establishment of the fee again 
for notice and comment. Further provisions relating to the 
determination of the average cost of incarceration have been added to 
the proposed rule. As an administrative measure, this rule delegates 
authority to the Director, Bureau of Prisons (Bureau), to promulgate 
regulations for collecting the costs of incarceration for inmates 
committed to the custody of the Attorney General and to collect such 
fees. The provisions in the Bureau of Prisons regulations (for example, 
procedures for exemption, waiver, or proration of fee assessment, 
calculation of assessment, and payment and appeal procedures) will be 
based upon the previously published proposed rule. Response to public 
comment on the previously published proposed rule relating to statutory 
authority, applicability, establishment of fee, the determination of 
the average cost, and administrative procedure is summarized below. 
Response to public comment relating to other provisions of the 
previously published proposed rule will be contained in the commentary 
for the separate Bureau of Prisons rule.
    Comments on the proposed rule were received from seven individuals 
(a federal employee, a law professor, and five federal inmates). An 
additional comment was received later from one of the original 
commenters purporting to contain the comments of two additional federal 
inmates. One commenter was in favor of the proposed rule, responding 
that criminal defendants should be required not only to pay the costs 
of their incarceration, but also to bear the burden of the social and 
economic costs of their crimes.
    The Department has carefully reviewed the public comments received 
concerning the proposed rule and has determined that a revised rule 
should be published for comment.

Attorney General's Certification and Rule Indexing

    Two commenters contested the validity of the rule on procedural 
grounds. One commenter disagreed with the Attorney General's 
certification pursuant to 5 U.S.C. 605(b) that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This commenter argues that the rule will have a significant financial 
impact on various inmates and their families owning joint property or 
filing joint tax returns.
    The Attorney General's certification pursuant to the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 601-12, is appropriate in this case. 
Under the RFA, neither an inmate or the inmate's family satisfies the 
definition of a ``small entity,'' which is defined by the Act as a 
``small business,'' ``small organization,'' or ``small governmental 
jurisdiction''. 5 U.S.C. 601(6). Further discussion of the agency 
provisions for the amelioration of the potential hardships faced by 
certain inmates and their families due to the imposition of a fee for 
costs of incarceration will be contained in the commentary for the 
final rule to be issued by the Bureau of Prisons.
    The second procedural comment received made the proposition that 
because the proposed rule was indexed in the Federal Register under 
``justice'' rather than ``prisons,'' notice of the proposed rule may 
have been improper. However, this choice of indexing was due to the 
fact that the Bureau of Prisons is within the Department of Justice and 
under the oversight authority of the Attorney General. Likewise, the 
rule was originating from the Attorney General and the Department of 
Justice. Thus, the rule was properly indexed under ``justice'' rather 
than ``prisons'' and no notice provisions of the Administrative 
Procedure Act were violated.
    In order to avoid any further confusion on this issue, however, the 
Department has decided to issue its regulations on costs of 
incarceration as two separate rules. The first rule, proposed for 
codification at 28 CFR 0.96c, provides the authority for establishing 
and collecting a fee for the costs of one year of incarceration. This 
rule also specifies the calculation used to determine the average cost 
of incarceration. In addition, the rule designates the Director of the 
Bureau of Prisons as being responsible for the review of the fee, for 
its calculation in accordance with the formula set forth in 
Sec. 0.96c(b), and for the publication of each year's fee (or revised 
fee) as a notice in the Federal Register. This rule also delegates to 
the Director the authority to promulgate regulations concerning the 
collection of the fee, to be codified as a second rule at 28 CFR part 
505. As previously proposed, the Director would have been required both 
to public the current fee as a notice in the Federal Register and to 
amend the fee in the regulation. This requirement has been modified in 
the interest of reducing unnecessary regulatory publication.

Average Cost of Incarceration Figure

    With regard to comments concerning the substantive provisions of 
the proposed rule, three commenters disagreed with the figure stated in 
proposed Sec. 505.2(b) representing the average cost of incarceration. 
Two commenters asserted that the average cost figure is not a fair 
calculation basis for those inmates placed in or transferred to 
minimum-security--and thus lower cost--institutions within the first 
year. One commenter stated that the figure was irrational, believing 
that the assessment would reduce inmates to the poverty level. Finally, 
one commenter contended that the Bureau of Prisons should not determine 
the average cost of incarceration figure.
    Despite these contentions, the Attorney General believes that this 
figure is a reasonable interpretation of the implementing statute. The 
plain language of section 111 of Public Law 102-395 orders the Attorney 
General to ``establish and collect a fee to cover the costs of 
confinement,'' with such fee being ``equivalent to the average cost of 
one year of incarcertation.'' Public Law 102-395, section 111(a) (1), 
(2), 106 Stat. 1828, 1842 (1992). Although at first glance it may seem 
fair to assess each fee based upon each individual inmate's cost of 
incarceration, this figure would not represent the ``average cost'' to 
the United States to confine every prisoner. Nor would basing the fee 
upon each inmate's initially designated institution be a fair 
assessment. While an inmate initially could be designated to a lower 
cost facility, within the first year he or she might be redesignated to 
a higher security/administrative, and higher cost, institution. Thus, 
the figure merely represents the average cost to the Bureau of Prisons 
to confine any prisoner and, accordingly, is a reasonable choice for 
the Attorney General to make in order to comply with the statute.
    However, to clarify the process and address these concerns, the 
Department is including in the proposed rule the formula used to 
calculate the average cost of one year of incarceration (see 
Sec. 0.96c(b)). This calculation is intended to provide a figure 
reflective of the actual costs expended to maintain inmates at Bureau 
facilities. The fee is calculated by dividing the expenses incurred at 
the Central, Regional, and institution level in such areas as salaries, 
supplies, travel, and equipment for the care and custody of inmates 
(e.g., security, programming, maintenance and general administration), 
excluding activation costs, by the number of inmate days, and by then 
multiplying the quotient by 365. The number of inmate days is 
calculated by adding, cumulatively, the number of inmates in custody at 
a given time each day for the one year period. Activation costs are 
those expenses incurred by the Bureau in the construction of new 
facilities and in their operation before staff assume control of the 
facility for the arrival of inmates.

Costs of Incarceration Fee vs. Costs of Imprisonment Fine

    Two commenters pointed out the correlation between this fee 
assessment and the costs of imprisonment fine imposed by the sentencing 
judge pursuant to United States Sentencing Guideline (USSG) section 
5E1.2(i). U.S.S.G. 5E1.2(i). One commenter believed that the fee 
assessment in the proposed rule was the responsibility of the 
sentencing judge, the other commenter questioned whether proposed rule 
Sec. 505.2(c) vitiates the application of U.S.S.G. Sec. 5E1.2(i). A 
third commenter noted that the Third Circuit has held that the absence 
of an authorizing statute in the Sentencing Reform Act of 1984 renders 
Sec. 5E1.2(i) invalid. See United States v. Spiropoulos, 976 F.2d 155 
(3d Cir. 1992); But see United States v. Hagmann, 950 F.2d 175, 186-87 
(5th Cir. 1991) (Sec. 5E1.2 upheld against 5th Amendment Due Process 
challenge), cert. denied, 113 S. Ct. 108 (1992); United States v. 
Turner, 998 F.2d 534 (7th Cir 1993) (expressly disagreeing with 
Spiropoulos); United States v. Doyan, 909 F.2d 412 (10th Cir. 1990) 
(Sec. 5E1.2 upheld against Equal Protection challenge).
    While the two provisions are analogous in their end result, they 
are not analogous in origin or intent. The amount assessed under 
U.S.S.G. Sec. 5E1.2(i) is a fine, pursuant to the Sentencing Reform Act 
of 1984, and is meant to be punitive in nature as part of an inmate's 
overall sentence. In contrast, the cost assessed under the proposed 
rule is a fee, pursuant to the plain language of a federal statute, and 
is meant to recoup the administrative costs of confinement and improve 
institutional programs. Furthermore, inmates will be assessed only one 
amount for their costs of confinement. They will either be assessed a 
fine under Sec. 5E1.2, or a fee under the proposed rule if the 
sentencing judge did not assess or waive the fine under Sec. 5E1.2.
    Two commenters disagreed with the fact that under the proposed rule 
Sec. 505.1, revocation of parole or supervised release is treated as a 
separate period of incarceration for which a fee may be imposed. 
However, this interpretation is reasonable because in each instance, 
the offender's conduct results in a distinct incarceration period and 
an additional expense to the Attorney General for the cost of the 
confinement.

Constitutionality of the Fee and Consequences of Non-Payment

    One commenter challenged the constitutionality of the proposed 
rule, citing an Eight Circuit case, Hankins v. Finnel, 964 F.2d 853 
(8th Cir.), cert. denied, 113 S. Ct. 635 (1992). However, that case, 
involving a Missouri statute concerning the recoupment of costs-of-
confinement, was decided narrowly upon Eleventh Amendment sovereign 
immunity and federal law preemption grounds; it did not involve the 
constitutionality of Missouri's entire cost-of-confinement program, or 
such programs in general.
    The rule is a matter of internal department management. It will not 
have a significant economic impact on a substantial number of small 
entities. This rule was not reviewed by the Office of Management and 
Budget pursuant to Executive Order 12866.

List of Subjects in 28 CFR Part 0

    Authority delegations (Government agencies), Government employees, 
Organization and functions (Government agencies), Whistleblowing.

    Accordingly, by virtue of the authority vested in the Attorney 
General by law, including 5 U.S.C. 301 and 28 U.S.C. 509-510, part 0 of 
title 28 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 0--[AMENDED]

    1. The authority citation for 28 CFR part 0 continues to read as 
follows:


    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

    2. In subpart Q, a new Sec. 0.96c is added to read as follows:


Sec. 0.96c  Costs of incarceration.

    (a) The Attorney General is authorized to establish and collect a 
fee to cover the cost of one year of incarceration. These provisions 
apply to any person who is convicted in a United States District Court 
and committed to the custody of the Attorney General, and who begins 
service of sentence on or after May 5, 1994. For the purposes of this 
subpart, revocation of parole or supervised release shall be treated as 
a separate period of incarceration for which a fee may be imposed.
    (b) The fee to cover the costs of incarceration shall be calculated 
by dividing the number representing the obligation encountered in 
Bureau of Prisons facilities (excluding activation costs) by the number 
of inmate-days incurred for the year, and by then multiplying the 
quotient by 365. The resulting figure represents the average cost to 
the Bureau for confining an inmate for one year.
    (c) The Director of the Bureau of Prisons is delegated the 
authority to collect the fee to cover the cost of incarceration from 
inmates committed to the custody of the Attorney General and to 
promulgate all regulations concerning the collection of the fee.
    (d) The Director shall review and determine the amount of the fee 
not less than annually in accordance with the formula set forth in 
paragraph (b) of this section. The Director shall publish each year's 
fee as a Notice in the Federal Register.

    Dated: March 24, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-8045 Filed 4-4-94; 8:45 am]
BILLING CODE 4410-01-M