[Federal Register Volume 64, Number 234 (Tuesday, December 7, 1999)]
[Proposed Rules]
[Pages 68307-68310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31636]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[USMS No. 100P; AG No. 2277-99]
RIN 1105-AA64


Revision to United States Marshals Service Fees for Services

AGENCY: United States Marshals Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to revise the United States Marshals 
Service fees to reflect current costs to the United States Marshals 
Service for service of process in Federal court proceedings.

DATES: Written comments must be submitted on or before February 7, 
2000.

ADDRESSES: Please submit written comments to the Office of General 
Counsel, United States Marshals Service, 600 Army Navy Drive, CS-3, 
Arlington, Virginia 22202. Comments are available for public inspection 
at the above address by calling (202) 307-9054 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Joe Lazar, Associate General Counsel, 
United States Marshals Service, 600 Army Navy Drive, CS-3, Arlington, 
Virginia 22202, telephone number (202) 307-9054.

SUPPLEMENTARY INFORMATION:

What Legal Authority Does the U.S. Marshals Service Have To Charge 
Fees?

    The Attorney General must establish fees to be taxed and collected 
for certain services rendered by the United States Marshals Service in 
connection with Federal court proceedings. 28 U.S.C. 1921(b). These 
services include, but are not limited to, serving writs, subpoenas, or 
summonses, preparing of notices or bills of sale, keeping attached 
property, and certain necessary travel. To the extent practicable, 
these fees shall reflect the actual and reasonable costs of the 
services provided. The Attorney General initially established the fee 
schedule in 1991 based on the actual costs, e.g., salaries, overhead, 
etc., of the services rendered and the hours expended at that time. See 
56 FR 2436 (January 23, 1991). Due to the increase in the salaries and 
benefits of United States Marshals Service personnel over time, the 
current fee schedule is inadequate and no longer reflects the actual 
and reasonable costs of the services rendered.

[[Page 68308]]

What Federal Cost Accounting and Fee Setting Standards and 
Guidelines Are Being Used?

    When developing fees for services, the U.S. Marshals Service 
adheres to the principles contained in OMB Circular No. 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 guidelines 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 ``prohibits assessment of a user 
charge on a service of addresses an aspect of the user charge (e.g., 
who pays the charge; how much is the charge; 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 guidance contained in OMB 
Circular A-25 to the fullest extent allowable. The guidance directs 
Federal agencies when calculating fees to charge the ``full cost'' of 
providing services that provide a specific benefit to recipients. OMB 
Circular A-25 defines full cost as including ``all direct and indirect 
costs to any part of the Federal Government of providing a good, 
resource, or service. These costs include, but are to not limited to, 
an appropriate share of'':
     Direct or 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;
     The management and supervisory costs; and
     The costs of enforcement, collection, research, 
establishment of standards, and regulation.

What Processes Were Used To Determine the Amount of the Fee 
Revision?

    As previously stated, the Attorney General initially established 
the fee schedule in 1991 based on the average salaries, benefits, and 
overhead of the Deputy U.S. Marshals who executed process on behalf on 
a requesting party. The 1991 rates, which are still currently charged 
are:
    For each item served (or service attempted) in person:
    (a) Within two hours, during published duty hours--a minimum charge 
of $40 per Deputy (or guard). If necessary, for each associated 
additional hour, or portion thereof--$20 per Deputy (or guard) per 
additional hour.
    (b) Within two hours, after published duty hours--a minimum charge 
of $50 per Deputy (or guard). If necessary, for each associated 
additional hour, or portion thereof--$25 per Deputy (or guard) per 
additional hour.
    In addition, the Attorney General established a flat fee of $3 for 
each item served by mail or forwarded for service in another judicial 
district.
    In November 1995, the Department of Justice, Office of Inspector 
General, issued an audit report on the U.S. Marshals Service's 
Collection of Service Fees and Commissions (Audit Report 96-01).\1\ In 
the report, the Office of Inspector General recommended that the U.S. 
Marshals Service determine whether the fee schedule reflects actual and 
reasonable costs of the services provided. As a result of the audit 
report, in 1998, the U.S. Marshals Service conducted an analysis to 
determine whether, in light of the increase in salaries and expenses of 
its workforce over time, the existing fee schedule accurately reflects 
the costs of serving process. The following cost module reflects the 
average hourly cost of serving process in person on behalf of a 
requesting party.
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    \1\ Copies of the audit report are available at www.usdoj.gov/
oig/au9601/au9601.htm.

                               Cost Module
Hourly Wage...................................................    $27.53
Fringe Benefits...............................................     11.01
Indirect Costs................................................      6.94
                                                               ---------
    Total Personnel Costs.....................................     45.48
 

    The hourly wage was determined by dividing the annual salary, 
including locality pay, of the average Deputy U.S. Marshal in 1998 who 
serves process into the total work hours in a year. The cost of Law 
Enforcement Availability Pay is also factored into the hourly wage of a 
Deputy U.S. Marshal.\2\ The fringe benefits rate reflected 40 percent 
of wage costs. Finally, the indirect costs, which are reflective of the 
costs of administrative services, including management/supervisory 
compensation and benefits, depreciation, utilities, supplies, and 
equipment, are approximately 18 percent of the total wage and benefits 
costs.\3\ As a result of the cost module, the U.S. Marshals Service has 
determined that the existing fee schedule no longer reflects the actual 
and reasonable costs of serving process.
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    \2\ In 1994, Congress passed the Law Enforcement Availability 
Pay Act, Pub. L. No. 103-329, Sec. 633, 108 Stat. 2425 (1994) 
(codified at 5 U.S.C. 5545a), which provides that law enforcement 
officers, such as Deputy U.S. Marshals, who are required to work 
unscheduled hours in excess of each regular work day, are entitled 
to a 25% premium pay in addition to their base salary.
    \3\ The indirect cost rate was derived by determining the 
proportion of management costs expended by the U.S. Marshals Service 
relative to direct program expenses assumed by the agency in Fiscal 
Year 1998.
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    The total personnel costs of serving process were rounded to the 
nearest whole dollar. Thus, in order to recover the actual and 
reasonable costs of serving process, the U.S. Marshals Service is 
proposing to charge $45 per hour (or portion thereof) for each item 
served by one Deputy U.S. Marshal. In order to simplify the calculation 
of the fees, the U.S. Marshals Service is proposing to eliminate the 
minimum charge for serving process within two hours and, instead, 
charge a fee based on a straight hourly rate for service.
    The U.S. Marshals Service also conducted a survey of a 
representative sampling of its district offices to determine whether 
the $3 flat fee for mailing process reflected the actual costs of 
mailing. The results of the survey indicated that the average actual 
cost of mailing process (which in most cases, required certified mail, 
return receipt delivery) is approximately $7 per item. Thus, the U.S. 
Marshals Service has determined that the flat mailing fee of $3 per 
item no longer reflects the costs of mailing. The U.S. Marshals Service 
is proposing to charge a flat fee of $8 per item as an accurate 
reflection of the costs of mailing or forwarding process. The $8 fee is 
based on the combination of the average actual cost of mailing or 
forwarding process and the indirect costs associated with mailing or 
forwarding process.

What Other Revisions to the Fee Regulation Are Proposed?

    The U.S. Marshals Service proposes to make three additional 
clarifications to the fee regulation. One of the revisions establishes 
a specific fee for the administrative preparation of a notice of sale, 
bill of sale, or U.S. Marshal deed on behalf of a requesting party. The 
other two revisions are housekeeping revisions, setting forth the 
definitions of ``item'' and ``process.''

1. Fee for Administrative Preparation of Notice of Sale, Bill of Sale, 
or U.S. Marshal Deed

    28 U.S.C. 1921(a)(1)(D) authorizes the U.S. Marshals Service to 
collect a fee for the preparation of a notice of sale or bill of sale 
on behalf of a requesting party. When the Attorney General initially

[[Page 68309]]

established the fee schedule in 1991, there was not specific provision 
made for a fee for the preparation of a notice of sale, bill of sale 
(in cases where personalty is sold), or a U.S. Marshal deed (in cases 
where realty is sold).
    The U.S. Marshals Service conducted an analysis to determine the 
administrative cost of preparing a notice of sale, bill of sale, or a 
U.S. Marshal deed. The following module reflects the average hourly 
administrative cost to complete this task.

                               Cost Module
Average Hourly Wage of GS-7/9 Employee........................    $21.49
Fringe Benefits...............................................      7.73
Indirect Costs................................................      5.26
                                                               ---------
    Total Costs...............................................     34.48
 

    The hourly wage was determined by dividing the average annual 
salary of an administrative employee who prepares the notice of sale 
and deed into the total work hours in a year. The fringe benefits rate 
of 36 percent \4\ of wage costs was also added to reflect the average 
hourly personnel cost of preparing these documents. Finally, as 
previously described, the indirect costs are approximately 18 percent 
of the total wage and benefits costs.
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    \4\ The fringe benefits rate to budget for an administrative 
position is less than the rate to budget for a Deputy U.S. Marshal 
position.
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    The analysis disclosed that the average administrative employee 
spent approximately 30-45 minutes conducting the task of preparing each 
of these documents. Thus, the typical cost for the preparation of these 
documents is between $17.24 and $25.86 for each item. Because the time 
to prepare notices of sale, bills of sale, or U.S. Marshal deeds does 
not vary widely, and in most cases takes less than one hour to 
accomplish, the U.S. Marshals Service is proposing to charge a flat fee 
of $20 per item rather than calculating the fee based on a straight 
hourly rate per item.

2. Housekeeping Provisions

    The calculation of the fee charged under the current fee regulation 
is dependent upon the number of endeavors to serve a piece of process, 
also referred to in the regulation as an ``item.'' Although ``item'' is 
not defined in 28 U.S.C. 1921 or the fee regulation, it has been 
defined by the U.S. Marshals Service in its internal guidance 
disseminated to its employees, as ``all papers issued in one action 
which are served simultaneously on one person or organization.'' The 
proposed regulation will include this definition of ``item.'' Under 
this definition, a Deputy U.S. Marshal who serves one person with one 
or more pieces of process in one case at one time serves one item. When 
two different people or organizations, however, are served with one or 
more pieces of process from one case at one time, then the number of 
items served would be two. Although the U.S. Marshals Service has the 
discretion to determine the number of items upon which fees will be 
calculated, the Service will exercise reasonableness to avoid excessive 
charges.
    Similarly, consistent with 28 U.S.C. 1921(a)(1)(A), the U.S. 
Marshals Service broadly defines ``process'' to include, but not be 
limited to, a summons and complaint, subpoena, writ, and the execution 
of court-ordered injunctions, and civil commitments on behalf of a 
requesting party. Process may also include the execution of ancillary 
court orders (other than subpoenas issued on behalf of indigent 
defendants and arrest warrants) in criminal cases. The proposed 
regulation sets forth the U.S. Marshals Service's internal policy 
regarding this matter.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this proposed rule and, by 
approving it, certifies that this rule will not have a significant 
economic impact on a substantial number of small entities. Under the 
current fee structure, the U.S. Marshals Service collected $1,341,921 
in service of process fees in FY1998.\5\ The implementation of this 
proposed rule will provide the U.S. Marshals Service with an additional 
$1,000,000 in revenue over the revenue that would be collected under 
the current fee structure. This revenue increase is a recovery of costs 
based on an increase in salaries, expenses, and employee benefits.
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    \5\ This amount does not include $1,152,565 in U.S. marshal 
commissions collected for sales during FY1998. This proposed rule 
does not affect commissions, only the fees charged for service of 
process.
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    The economic impact on individual entities that utilize the 
services of the U.S. Marshals Service is minimal. The service of 
process fees only affect entities that pursue litigation in Federal 
court and, in most instances, seek to have the U.S. Marshals levy upon 
or seize property. The service of process fees, currently set at 
essentially $20 per duty hour and $25 per non-duty hour, will be 
increased to $45 per hour. The fees are consonant with similar fees 
already paid by these entities in state court litigation.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly on uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 
This rule will not result in an annual effect on the economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies on domestic and export markets.

Executive Order 12866

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866 (Regulatory Planning and Review), section 1(b) 
(Principles of Regulation). The Department of Justice, United States 
Marshals Service, has determined that this proposed rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and, accordingly, this rule has been reviewed by the Office of 
Management and Budget.

Executive Order 13132

    This proposed rule will not have substantial direct effects on the 
States. on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the Department of Justice, United States 
Marshals Service, has determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
section 3(a) and 3(b)(2) of Executive Order 12988.

[[Page 68310]]

Paperwork Reduction Act of 1995

    This proposed rule does not contain collection of information 
requirements and would not be subject to the Paperwork Reduction Act of 
1980, as amended (44 U.S.C. 3501-20).

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulation, call or write Joe Lazar, Associate General 
Counsel, United States Marshals Service, 600 Army Navy Drive, CS-3, 
Arlington, Virginia 22202, telephone number (202) 307-9054.

List of Subjects in 28 CFR Part 0

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

    Accordingly, Title 28, Part 0. Subpart U of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 0--[AMENDED]

    1. The authority citation for Part 0 continues to read as follows:

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

    2. Section 0.114 is transferred from subpart U to the end of 
subpart T; paragraphs (6) through (d) are redesignated as paragraphs 
(f) through (h), respectively; paragraph (a) is revised; and new 
paragraph (b) through (e) are added to read as follows:


Sec. 0.114  Fees for Services.

    (a) The United States Marshals Service shall routinely collect fees 
according to the following schedule:
    (1) For process forwarded for service from one U.S. Marshals 
Service Office or suboffice to another--$8 per item forwarded;
    (2) For process served by mail--$8 per item mailed;
    (3) For process served or executed personally--$45 per hour (or 
portion thereof) for each item served by one U.S. Marshals Service 
employee, agent, or contractor, plus travel costs and any other out-of-
pocket expenses. For each additional U.S. Marshals Service employee, 
agent, or contractor who is needed to serve process--$45 per person per 
hour for each item served, plus travel costs and any other out-of-
pocket expenses.
    (4) For copies at the request of any party--$.10 per page;
    (5) For preparing notice of sale, bill of sale, or U.S. Marshal 
deed--$20 per item;
    (6) For keeping and advertisement of property attached--actual 
expenses incurred in seizing, maintaining, and disposing of property.
    (b) Out-of-pocket expenses include, but are not limited to, 
advertising, inventorying, storage, moving, insurance, guard hire, 
prisoner transportation and housing, and any other third-party 
expenditure incurred in executing process.
    (c) Travel costs, including mileage, shall be calculated according 
to 5 U.S.C. chapter 57.
    (d) ``Item'' is defined as all documents issued in one action which 
are served simultaneously on one person or organization.
    (e) ``Process'' is defined to include, but it not limited to, a 
summons and complaint, subpoena, writ, orders, and the execution of 
court-ordered injunctions, and civil commitments on behalf of a 
requesting party. Process may also include the execution of ancillary 
court orders (other than subpoenas issued on behalf of indigent 
defendants and arrest warrants) in criminal cases.
* * * * *
    Dated: November 29, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-31636 Filed 12-6-99; 8:45 am]
BILLING CODE 4410-04-M