[Federal Register Volume 73, Number 116 (Monday, June 16, 2008)]
[Proposed Rules]
[Pages 33955-33957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13437]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[Docket No. USMS 102; AG Order No. 2974-2008]
RIN 1105-AB14


Revision to United States Marshals Service Fees for Services

AGENCY: United States Marshals Service, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to increase the fee from $45 per person per 
hour to $55 per person per hour for process served or executed 
personally by a United States Marshals Service employee, agent, or 
contractor. This proposed fee increase reflects the 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 August 15, 2008.

ADDRESSES: Please submit written comments to the Office of General 
Counsel, United States Marshals Service, Washington, DC 20530-1000. To 
ensure proper handling, please reference Docket No. USMS 102 on your 
correspondence.
    Comments may also be submitted electronically to: 
[email protected] or to http://www.regulations.gov by using the 
electronic comment form provided on that site. Comments submitted 
electronically must include Docket No. USMS 102 in the subject box. You 
may also view an electronic version of this rule at the http://www.regulations.gov site.
    Comments are also available for public inspection at the Office of 
General Counsel by calling (202) 307-9054 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Joe Lazar, Associate General Counsel, 
United States Marshals Service, Washington, DC 20530-1000, telephone 
number (202) 307-9054.

SUPPLEMENTARY INFORMATION:

Legal Authority for the U.S. Marshals Service To Charge Fees

    The Attorney General must establish fees to be taxed and collected 
for certain services rendered by the U.S. 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 notices or bills of sale, keeping attached 
property, and certain necessary travel. 28 U.S.C. 1921(a). To the 
extent practicable, these fees shall reflect the actual and reasonable 
costs of the services provided. 28 U.S.C. 1921(b).
    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. 56 FR 2436 (Jan. 
23, 1991). Due to an increase in the salaries and benefits of U.S. 
Marshals Service personnel over time, the initial fee schedule was 
amended in 2000. 65 FR 47859 (Aug. 4, 2000). The current fee schedule 
is inadequate and no longer reflects the actual and reasonable costs of 
the services rendered.

Federal Cost Accounting and Fee Setting Standards and Guidelines Being 
Used

    When developing fees for services, the U.S. Marshals Service 
adheres to the principles contained in Office of Management and Budget 
Circular No. A-25 Revised (``Circular No. A-25''). Circular No. 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.'' Id. Sec.  6.
    The U.S. Marshals Service follows the guidance contained in 
Circular No. A-25 to the extent that it is not inconsistent with any 
federal statute. Specific legislative authority to charge fees for 
services takes precedence over Circular No. A-25 when the statute 
``prohibits the 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).'' Id. Sec.  4(b). When a 
statute does not address issues of how to calculate fees or what costs 
to include in fee calculations, Circular No. A-25 instructs that its 
principles and guidance should be followed ``to the extent permitted by 
law.'' Id. According to Circular No. A-25, federal agencies should 
charge the full cost or the market price of providing services that 
provide a special benefit to identifiable recipients. Id. Sec.  6. 
Circular No. A-25 defines full cost as including ``all direct and 
indirect costs to any part of the Federal Government of providing

[[Page 33956]]

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. Id. Sec.  6(d).

Processes Used To Determine the Amount of the Fee Revision

    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 
fee schedule was revised in 2000. The 2000 rates, which still currently 
are charged are:
    (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 the 
property.
    In 2007, the U.S. Marshals Service conducted an analysis to 
determine whether, in light of the increase in salaries and expenses of 
its workforce over the previous seven-year time period, the existing 
fee schedule continued to reflect the costs of serving process. The 
following cost module was designed to reflect the average hourly cost 
of serving process in person on behalf of a requesting party.

------------------------------------------------------------------------
                                                                  Cost
                                                                 module
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Hourly Wage..................................................     $33.00
Fringe Benefits..............................................      14.18
Indirect Costs...............................................      10.28
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    Total Personnel Costs....................................      57.46
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    The hourly wage was determined by dividing the annual salary, 
including locality pay, of the average Deputy U.S. Marshal in 2007 who 
served process into the Deputy's total work hours for the year. The 
cost of Law Enforcement Availability Pay also was factored into the 
hourly wage of an average Deputy U.S. Marshal.\1\ The fringe benefits 
rate reflected 43 percent of wage costs. Finally, the indirect costs, 
which reflected the costs of administrative services, including 
management/supervisory compensation and benefits, depreciation, 
utilities, supplies, and equipment, comprised approximately 22 percent 
of the total wage and benefits costs. As a result of the cost module, 
the U.S. Marshals Service determined that the existing fee schedule no 
longer reflected the actual and reasonable costs of serving process.
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    \1\ The Law Enforcement Availability Pay Act of 1994, Pub. L. 
No. 103-329, Sec.  633, 108 Stat. 2425 (1994) (codified at 5 U.S.C. 
5545a), 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.
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    The total personnel costs of serving process were rounded to the 
nearest five-dollar increment. Thus, in order to recover the actual and 
reasonable costs of serving process, the U.S. Marshals Service is 
proposing to charge $55 per hour (or portion thereof) for each item 
served by one Deputy U.S. Marshal. This represents a 20 percent 
increase ($10 per hour) from the existing fee for serving process 
revised in 2000.

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 
$1,610,552.72 in service of process fees in FY 2007.\2\ The 
implementation of this proposed rule will provide the U.S. Marshals 
Service with an estimated additional $325,000 in revenue over the 
revenue that would be collected under the current fee structure. This 
revenue increase represents a recovery of costs based on an increase in 
salaries, expenses, and employee benefits over the previous seven-year 
period.
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    \2\ This amount does not include $534,518 in U.S. Marshal 
commissions collected and the recovery of out-of-pocket expenses for 
sales during FY 2007. 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 will be minimal. The service of 
process fees only will 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 will be 
increased by only $10 per hour from the previous rate increase seven 
years ago. The fees will be 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 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 proposed 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 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 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

[[Page 33957]]

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 has determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

Executive Order 12988

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

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).

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 T 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.


Sec.  0.114  [Amended]

    2. In Sec.  0.114, paragraph (a)(3) is amended by removing the fee 
``$45'' and adding the fee ``$55'' in its place wherever it occurs.

    Dated: June 5, 2008.
Michael B. Mukasey,
Attorney General.
 [FR Doc. E8-13437 Filed 6-13-08; 8:45 am]
BILLING CODE 4410-04-P