[Federal Register Volume 65, Number 151 (Friday, August 4, 2000)]
[Rules and Regulations]
[Pages 47859-47862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19809]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[USMS NO. 100F; AG Order No. 2316-2000]
RIN 1105-AA64


Revision to United States Marshals Service Fees for Services

AGENCY: United States Marshals Service, Justice.

ACTION:  Final rule.

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SUMMARY: This rule revises the United States Marshals Service fees to 
reflect current costs to the United States Marshals Service for service 
of process in Federal court proceedings. A proposed rule with 
invitation to comment was published in the Federal Register on December 
7, 1999, at 64 FR

[[Page 47860]]

68307. No comments were received within the 60-day comment period. 
Accordingly, the proposed rule is finalized without change.

DATES: Effective September 5, 2000.

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 United States 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. Sec. 1921(b). 
These services include, but are not limited to, serving writs, 
subpoenas, or summonses, preparing 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 an 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.

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

    When developing fees for services, the United States 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 guidance 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 or 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 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 of 
a requesting party. The 1991 rates 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 United States 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 United 
States 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 United States 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 United States 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. Sec. 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 United States 
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 United States Marshals Service 
will be charging $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 United States Marshals Service is eliminating the minimum 
charge for serving process within two hours and, instead, will

[[Page 47861]]

charge a fee based on a straight hourly rate for service.
    The United States 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 United 
States Marshals Service has determined that the flat mailing fee of $3 
per item no longer reflects the costs of mailing. The United States 
Marshals Service will be charging 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 are the Other Revisions to the Fee Regulation?

    The United States Marshals Service makes 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. Sec. 1921(a)(1)(D) authorizes the United States 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 established the fee schedule in 1991, there was no specific 
provision made for a fee for the preparation of a notice of sale, bill 
of sale (in cases where personality is sold), or a U.S. Marshal deed 
(in cases where realty is sold).
    The United States 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 costs 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, 
bill of sale, or U.S. Marshal 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 United States Marshals Service will be charging 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. Sec. 1921 or the fee regulation, it has been 
defined by the United States 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 
regulation includes 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 United States Marshals Service has the 
discretion to determine the number of items upon which fees will be 
calculated, the United States Marshals Service will exercise 
reasonableness to avoid excessive charges.
    Similarly, consistent with 28 U.S.C. 1921(a)(1)(A), the United 
States 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 
regulation sets forth the United States Marshals Service's internal 
policy regarding this matter.
    As previously stated, this rule revised the United States Marshals 
Service fees to reflect current costs to the United States Marshals 
Service for service of process in Federal court proceedings. A proposed 
rule with invitation to comment was published in the Federal Register 
on December 7, 1999, at 64 FR 68307. No comments were received within 
the 60-day comment period. Accordingly, the proposed rule is finalized 
without change.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this 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 United States Marshals Service collected $1,341,921 in 
service of process fees in FY1998.\5\ The implementation of this rule 
will provide the United States 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 United States 
Marshals Service commissions collected for sales during FY1998. This 
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 United States 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 United States Marshals 
Service 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.

[[Page 47862]]

Unfunded Mandates Reform Act of 1995

    This 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 or 
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 rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness 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 in domestic and 
export markets.

Executive Order 12866

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

Paperwork Reduction Act of 1995

    This 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 regulations, 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 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 (b) through (d) are redesignated as paragraphs 
(f) through (h), respectively; paragraph (a) is revised; and new 
paragraphs (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 is 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: July 28, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-19809 Filed 8-3-00; 8:45 am]
BILLING CODE 4410-04-M