[Federal Register Volume 59, Number 240 (Thursday, December 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30775]


[[Page Unknown]]

[Federal Register: December 15, 1994]


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Part VI





Department of Justice





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Bureau of Prisons



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28 CFR Part 505



Inmate Incarceration Fee Costs; Final Rule
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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 505

[BOP-1024-F]
RIN 1120-AA27

 

Costs of Incarceration Fee

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: This final rule establishes procedures for the assessment and 
collection of a fee to cover the costs of incarceration for Federal 
inmates. This fee, which is to be assessed no more than once for any 
separate period of incarceration, shall be equivalent to the average 
cost of one year of incarceration. An inmate will be assessed a fee in 
accordance with his or her ability to pay as determined by application 
of the Department of Health and Human Services poverty guidelines. No 
fee is to be collected from an inmate with respect to whom a fine 
intended to recover costs of incarceration was imposed or waived by a 
United States District Court. An assessed fee may be waived or reduced 
in cases of financial hardship. This final rule, which implements newly 
enacted statutory authority and Departmental regulations on recovering 
costs of incarceration, is intended to ensure the continued efficient 
operation of Federal correctional institutions, including the provision 
of programs which help inmates better themselves.

EFFECTIVE DATE: This rule is effective January 1, 1995.

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

SUPPLEMENTARY INFORMATION: On June 28, 1993, the Justice Department 
published a proposed rule (58 FR 34541) establishing procedures for the 
assessment and collection of a fee to cover the costs of incarceration 
for Federal inmates. Comments were received from seven individuals, 
consisting of a federal employee, a law professor, and five federal 
inmates. In response to public comment on this proposed rule and for 
reasons of administrative management, the Department published a second 
proposed rule on April 5, 1994 (59 FR 15880) separating provisions 
relating to the establishment of the fee from those provisions relating 
to the administration and collection of the fee. The proposed rule 
delegated authority relating to the latter provisions to the Director 
of the Bureau of Prisons. This second proposed rule contained the 
Department's response to comments pertinent to statutory authority, 
applicability, establishment of the fee, determination of the average 
cost, and administrative procedure. One further comment from the 
general public was received on this second proposed rule. After review 
of the public comment received on this second proposed rule, the 
Department has published a document in the November 25, 1994 Federal 
Register (59 FR 60557) adopting as final the provisions contained in 
the April 5 proposed rule. The Bureau, in this document, is adopting as 
final regulations that portion of the Department's June 28, 1993 
proposed rule relating to the assessment and collection of the fee by 
Bureau staff. A summary of the public comment and agency response 
follows.
    Three commenters disagreed with the fact that the Unit Team will 
rely exclusively upon the information contained in the Pre-Sentence 
Investigation Report (PSI) and the orders and findings of the 
sentencing judge in order to determine an inmate's financial status. 
One commenter believed that Unit Team staff would benefit from 
assessing high fees and that they would only rely on the Government's 
statements, instead of the inmate's contentions that he or she is 
unable to pay. Another commenter contended that the Unit Team is not 
qualified to assess a fine and that there are no safeguards in place to 
protect inmates from abusive assessments. The third commenter 
recognized that facts in the PSI could be controverted at the 
sentencing hearing, but argues that the focus at that point in time is 
on sentencing, not on cost-of-confinement fee assessment. He also 
argues that the PSI does not distinguish between the joint assets of 
two equally culpable married offenders, leaving them both open to a 
full assessment based upon the full property value. One commenter asked 
what would happen if no findings of financial fitness were made in the 
PSI or the inmate's assets changed during incarceration.
    The decision to rely exclusively upon the findings made in the PSI 
and during sentencing proceedings was based upon considerations of 
fairness and administrative necessity. Unit Team staff have neither the 
time nor resource information necessary to make individual assessments 
of financial fitness to pay the fee. Instead, the initial findings made 
in the PSI and finalized at the sentencing hearing provide a reasonable 
basis upon which to evaluate the financial standing of the inmate.
    Under existing federal statutes and the Sentencing Guidelines, an 
offender's sentence could, and should, include a fine. Thus, every PSI 
contains an assessment and recommendation as to an offender's financial 
status and resources. This assessment, while dependent upon state 
property law, will make distinctions between joint and individual 
property. Consequently, at the sentencing hearing, the offender will 
have an opportunity to dispute the financial findings and put forth his 
or her own favorable evidence as to income. Because federal statutes 
and the Sentencing Guidelines make it clear that an offender's fine 
will depend upon income, financial resources, and dependents, it is in 
the offender's own best interest to ensure that the PSI and the judge's 
ultimate findings are as complete as possible with regard to his or her 
financial status. Thus, the Unit Team will not have to conduct 
individual fact-finding, but can make simple, objective calculations 
based upon previously established figures.
    Moreover, under the proposed rule, additional review is provided 
through the Bureau of Prisons' Administrative Remedy Process so that 
the inmate can demonstrate his or her inability to pay the fee. Two 
commenters were critical of the Bureau's remedy process, one individual 
commenting that the remedy procedures are only a ``rubberstamp'' 
process meant to delay an inmate's access to the courts. He also 
contended that the waiver under Sec. 505.2(f) will only be granted to 
informants. Despite this cynicism, the Bureau's three-tiered 
administrative remedy process ensures that decisionmaking and review 
are made at three impartial administrative levels and promotes the 
efficient and non-adversarial resolution of inmate grievances.
    Another disagreement with the proposed rule was with regard to the 
management of the fees under the Inmate Financial Responsibility 
Program (IFRP), 28 CFR part 545, subpart B. Two commenters felt the 
IFRP was manipulative, forcing inmates to either choose to participate 
or lose higher-paying jobs in UNICOR or other institutional privileges. 
One commenter felt that the fee assessments would force more inmates to 
work in UNICOR factories. Nevertheless, the use of this program to 
manage the fee assessments is efficient and sound. The program is 
currently being used to help inmates coordinate the payment of their 
financial obligations in light of each inmate's institutional program 
and job assignments. Logically, the fee assessment will merely become 
another financial obligation to be considered in making these payments. 
Likewise, the IFRP has been upheld in the federal courts as a 
reasonable means of helping inmates meet legitimate financial 
obligations. See, e.g., Dorman v. Thornburgh, 955 F.2d 57 (D.C. Cir. 
1992); James v. Quinlan, 866 F.2d 627 (3d Cir.), cert. denied, 493 U.S. 
870 (1989).
    Another commenter queried whether a failure to pay the fee prior to 
release would result in a longer prison term or a Bureau of Prisons' 
lien upon an inmate's property. As mentioned earlier, the fee 
assessment is neither punitive nor part of an inmate's sentence. Thus, 
a failure to pay off the assessment prior to release will not lengthen 
an inmate's original imprisonment term. As proposed, unpaid amounts 
were to be referred to the appropriate United States Attorney's Office. 
This procedure is part of the Federal Claims Collection Standards. In 
order to emphasize that any referral of an unpaid amount is to be 
handled in the same manner as other unpaid claims to the Federal 
government, the Bureau has revised Sec. 505.9 to specify that any 
unpaid amount will be referred in accordance with Federal Claims 
Collection Standards (4 CFR Chapter II).
    One commenter objected to the Department's April 5, 1994 proposed 
rule, stating that it was a draconian rule imposing an additional 
``punishment fine'' on the inmate, that it would punish the inmate's 
spouse and children through the threat of poverty and dependence upon 
welfare, and that it would prevent the inmate from regaining financial 
stability upon release from prison. As noted in the Department's final 
rule and also above in this document, the cost of incarceration fee is 
not an additional assessment to any fine imposed by the court. 
Provisions in the proposed rule intended to protect the inmate and the 
inmate's dependents from financial hardship have been retained in this 
final rule. These protections include use of the Department of Health 
and Human Services annual poverty guidelines for the purpose of 
assessment, reduction or waiver of the fee in instances where the 
inmate establishes that he or she is not able and, even with the use of 
a reasonable installment schedule, is not likely to pay all or part of 
the fee, or that imposition of the fee would unduly burden the inmate's 
dependents.
    This same commenter also objected to the requirement that the fee 
is due and payable fifteen days after notice and may also be subject to 
interest charges. The commenter stated that there was no information on 
how the late payment ``fine'' will be determined. The commenter 
objected to the prioritization of payment, claiming that it meant the 
fee would be paid before any other financial obligations such as child 
support, federal or state taxes or court fine. The Bureau believes that 
the various protections against the imposition of a financial hardship 
in assessing the fee will ensure that payment of the fee is not 
unreasonable. The Bureau's Inmate Financial Responsibility Program 
already provides for payment in full or for payment by installment of 
inmate financial obligations. The regulations for payment of the cost 
of incarceration fee merely defer to these procedures. The cost of 
incarceration fee is to be included under the category of ``other 
federal government obligations'', and shall be paid before other 
financial obligations in that same category. Under the priority order 
for payment contained in 28 CFR 545.11(a), payment of the cost of 
incarceration fee is made after (not before, as assumed by the 
commenter) State or local court obligations such as child support, 
court fines, and state taxes.
    This commenter disagreed with the stated aim of both proposed rules 
as being intended to ensure the continued efficient operation of 
Federal correctional institutions, including the provision of programs 
to help inmates better themselves. The commenter stated that there was 
no indication as to what this meant nor was there a system to audit the 
use of the funds collected. By statute, the funds collected in 
accordance with these regulations shall be deposited as offsetting 
collections to the appropriate Federal Prison System, ``Salaries and 
expenses,'' and shall be available, inter alia, to enhance alcohol and 
drug abuse prevention programs. 106 Stat. 1842 (18 U.S.C. 4001 note). 
As budgetary expenditures, these funds are subject to the same audit 
systems as the rest of the Bureau's budget.
    In issuing these final regulations separately from the Department's 
provisions, the Bureau has editorially revised the provisions in order 
to make better organizational use of section headings.

List of Subjects in 28 CFR Part 505

    Penalties, Prisoners.

Kathleen M. Hawk,
Director, Bureau of Prisons.

    Accordingly, pursuant to the rulemaking authority vested in the 
Attorney General by 5 U.S.C. 552(a) and delegated to the Director, 
Bureau of Prisons in 28 CFR 0.96(p), part 505 is added to subchapter A, 
Chapter V of title 28 of the Code of Federal Regulations as follows.

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 505--COSTS OF INCARCERATION FEE

Sec.
505.1  Purpose and scope.
505.2  Fee assessment--annual determination of average cost of 
incarceration.
505.3  Calculation of assessment by unit staff.
505.4  Inmates exempted from fee assessment.
505.5  Inmates subject to prorated fee assessment.
505.6  Waiver of fee by Warden.
505.7  Procedures for payment.
505.8  Procedures for appeal.
505.9  Procedures for final disposition.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 31 U.S.C. 3717; Pub. L. 
102-395, 106 Stat. 1842 (18 U.S.C. 4001 note); 28 CFR 0.95-0.99.


Sec. 505.1  Purpose and scope.

    This part establishes procedures for the assessment and collection 
of a fee to cover the cost of incarceration. The provisions of this 
part 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 January 1, 1995. For purposes of 
this part, revocation of parole or supervised release shall be treated 
as a separate period of incarceration for which a fee may be imposed.


Sec. 505.2  Fee assessment--annual determination of average cost of 
incarceration.

    (a) The Attorney General is required to collect and establish a fee 
to cover the cost of confinement which is equivalent to the average 
cost of one year of incarceration. See 28 CFR 0.96c.
    (1) For the fiscal year 1995, the fee to cover the cost of 
incarceration shall be $21,352. This figure represents the average cost 
to the Bureau of Prisons of confining an inmate for one year.
    (2) The fee is 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 preceding 
fiscal year, and by then multiplying the quotient by 365. See 28 CFR 
0.96c.
    (b) The Director of the Bureau of Prisons shall review the amount 
of the fee not less than annually to determine the cost of 
incarceration. The new figure shall be published as a notice in the 
Federal Register.


Sec. 505.3  Calculation of assessment by unit staff.

    Bureau of Prisons Unit Team staff shall be responsible for 
computing the amount of the fee to be paid by each inmate.
    (a) Unit Team staff shall rely exclusively on the information 
contained in the Presentence Investigation Report and findings and 
orders of the sentencing court in order to determine the extent of an 
inmate's assets, liabilities and dependents.
    (b) The fee shall be assessed in accordance with the following 
formula: If an inmate's assets are equal to or less than the poverty 
level, as established by the United States Department of Health and 
Human Services and published annually in the Federal Register, no fee 
is to be imposed. If an inmate's assets are above the poverty level, 
Unit Team staff shall impose a fee equal to the inmate's assets above 
the poverty level up to the average cost to the Bureau of Prisons of 
confining an inmate for one year.


Sec. 505.4  Inmates exempted from fee assessment.

    A fee otherwise required by this part may not be collected from an 
inmate with respect to whom a fine was imposed or waived by a United 
States District Court pursuant to section 5E1.2 (f) and (i) of the 
United States Sentencing Guidelines or any successor provisions.


Sec. 505.5  Inmates subject to prorated fee assessment.

    For any inmate committed to the custody of the Attorney General for 
a period of less than 334 days (including pretrial custody time), the 
maximum fee to be imposed shall be computed by prorating on a monthly 
basis the average cost for one year of confinement.


Sec. 505.6  Waiver of fee by Warden.

    The Warden may reduce or waive the fee if the person under 
confinement establishes that:
    (a) He or she is not able and, even with the use of a reasonable 
installment schedule, is not likely to become able to pay all or part 
of the fee, or
    (b) Imposition of a fee would unduly burden the defendant's 
dependents.


Sec. 505.7  Procedures for payment.

    Fees imposed pursuant to this part are due and payable 15 days 
after notice of the Unit Team actions. Fees shall be included in the 
Inmate Financial Responsibility Program under the category ``other 
federal government obligations'', and shall be paid before other 
financial obligations included in that same category. Fees not paid 
within 15 days may result in interest charges.


Sec. 505.8  Procedures for appeal.

    An inmate may appeal the Warden's decision not to grant a waiver or 
the Unit Team's calculation through the Administrative Remedy Procedure 
(see part 542 of this chapter) and may submit information to 
demonstrate substantial hardship.


Sec. 505.9  Procedures for final disposition.

    Before the inmate completes his or her sentence, Unit Team staff 
shall review the status of the inmate's fee and any unpaid amount will 
be referred for collection in accordance with Federal Claims Collection 
Standards (4 CFR Chapter II).

[FR Doc. 94-30775 Filed 12-14-94; 8:45 am]
BILLING CODE 4410-05-P