[Federal Register Volume 59, Number 226 (Friday, November 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29029]


[[Page Unknown]]

[Federal Register: November 25, 1994]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[AG ORDER No. 1932-94]

 

Costs of Incarceration

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This final 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.

EFFECTIVE DATE: December 27, 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 April 5, 1994, the Department of Justice 
published a proposed rule, to be codified at 28 CFR part 0, providing 
for the assessment and collection of a fee to cover the costs 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. (59 FR 15880.) The other provisions for 
the administration and collection of the fee had been contained in a 
proposed rule previously published on June 28, 1993. These provisions 
will be promulgated by the Bureau of Prisons (Bureau) in a separate 
document.
    Comments on the proposed rule were received from one individual. A 
portion of these comments related to the provisions previously proposed 
on June 28, 1993 which are to appear in the Bureau's final rule. These 
comments are noted here and will be fully addressed in the Bureau's 
document.
    The commenter objected to the proposed rule stating that the fee 
was clearly a punishment which would be additional to any imposed by 
the court. The commenter stated that the basis of the proposed rule was 
unexplained and alleged that the fee would prove to be an economic 
hardship to inmates, that inmates would be at greater risk to return to 
criminal behavior upon release from prison, and that families of 
inmates would be impoverished through application of the regulations. 
In response, the Department notes that the regulations implement the 
clearly stated provisions of the statute to establish and collect a fee 
to cover the costs of confinement. The statute (Pub. L. 102-395, 
section 111, 106 Stat. 1828, 1842) and implementing Bureau regulations 
also clearly provide for protection against unduly burdening the inmate 
or the inmate's dependents, including cases where a judge has imposed 
or waived a fine pursuant to section 5E1.2 (f) and (i) of the United 
States Sentencing Guidelines, or any successor provisions. Further 
discussion of these protections are contained in the final rule to be 
published by the Bureau of Prisons.
    The commenter claimed that the proposed rule was unfair to pretrial 
inmates who cannot afford bail. The Department notes that the statute 
and regulations are not applicable to pretrial inmates.
    The commenter objected to the delegation to the Director of Bureau 
of Prisons of the authority to collect the fine and to promulgate all 
regulations concerning the collection of the fee, claiming that the 
Director did not have the expertise for collecting the fee and was not 
in a position to understand the ramifications of imposing the fee. In 
making this point, the commenter suggested that a judge was better 
suited to understand ``* * * the ramifications of this punishment fine 
[sic].'' In response, the Department notes that existing Bureau 
regulations on inmate financial responsibility (see 28 CFR part 545, 
subpart B) demonstrate the Bureau's expertise in such matters. As noted 
above, the fee to cover the cost of incarceration is required under 
statutory authority and further delegation of this authority by the 
Attorney General outside the executive branch, as suggested by the 
commenter, would be inappropriate.
    The 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, arguing that 
imprisoned people may own small businesses in whole or in part. As 
noted in its response to comment in the April 5, 1994 proposed rule, 
the Attorney General's certification pursuant to the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 601-12, is appropriate in this case. 
Inmates and their families in general do not satisfy the definition of 
a ``small entity'' under the Act. Furthermore, any inmate who owns a 
small business in whole or in part is separately enjoined by Bureau 
regulations from conducting such business while incarcerated.
    The commenter objected to the provision treating revocation of 
parole or supervised release as a separate period of incarceration for 
which a fee may be imposed. As previously noted in its response to 
comment in the April 5, 1994 proposed rule, the Department believes 
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.
    The commenter expressed concern over the determination of the exact 
cost of imprisonment, citing higher figures allegedly mentioned in news 
stories. The Department notes that the determination of each year's fee 
through computation of the formula contained in Sec. 0.96c(b) is 
designed to prevent any confusion over what is the cost of 
incarceration in the federal system.
    This 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 O

    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 O of 
title 28 of the Code of Federal Regulations is amended as follows:

PART O--[AMENDED]

    1. The authority citation for 28 CFR part O 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  Cost of incarceration.

    (a) The Attorney General is required 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 December 27, 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 November 15, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-29029 Filed 11-23-94; 8:45 am]
BILLING CODE 4410-01-M