[Federal Register Volume 73, Number 224 (Wednesday, November 19, 2008)]
[Rules and Regulations]
[Pages 69552-69554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27465]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[Docket No. USMS 102; AG Order No. 3017-2008]
RIN 1105-AB14


Revision to United States Marshals Service Fees for Services

AGENCY: United States Marshals Service, Department of 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 
personal service and execution of process in federal court proceedings. 
A proposed rule with request for comment was published in the Federal 
Register on June 16, 2008, at 73 FR 33955. No comments were received 
within the 60-day comment period. Accordingly, the proposed rule is 
finalized without change.

DATES: Effective December 19, 2008.

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 
personal service and execution of process.

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 a 
good, resource, or service. These costs include, but are not limited 
to, an appropriate share of'':
     Direct and 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).

[[Page 69553]]

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 served or 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
------------------------------------------------------------------------
Hourly Wage...................................................    $33.00
Fringe Benefits...............................................     14.18
Indirect Costs................................................     10.28
                                                               ---------
    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 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 personally serving process.
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    \1\ The Law Enforcement Availability Pay Act of 1994, Public Law 
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 will be 
charging $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 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 FY2007.\2\ The implementation of this 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 FY2007. 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 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 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 has determined 
that this rule is not a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), and, accordingly, this rule has 
not 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 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 rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988 concerning civil justice reform.

[[Page 69554]]

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).

List of Subjects in 28 CFR Part 0

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

0
Accordingly, Title 28, Part 0 of the Code of Federal Regulations is 
amended as follows:

PART 0--[AMENDED]

0
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]

0
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: November 12, 2008.
Michael B. Mukasey,
Attorney General. 8
 [FR Doc. E8-27465 Filed 11-18-08; 8:45 am]
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