[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
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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
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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