[Federal Register Volume 78, Number 71 (Friday, April 12, 2013)]
[Proposed Rules]
[Pages 21862-21864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08158]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[Docket No. USMS 110; AG Order No. 3381-2013]
RIN 1105-AB42


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 $55 per person per 
hour to $65 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 postmarked and electronic comments must 
be submitted on or before June 11, 2013. Comments received by mail will 
be considered timely if they are postmarked on or before that date. The 
electronic Federal Docket Management System (FDMS) will accept comments 
until Midnight Eastern Time at the end of that day.

ADDRESSES: To ensure proper handling of comments, please reference 
``Docket No. USMS 110'' on all electronic and written correspondence. 
The Department encourages all comments be submitted electronically 
through http://www.regulations.gov using the electronic comment form 
provided on that site. An electronic copy of this document is also 
available at the http://www.regulations.gov Web site for easy 
reference. Paper comments that duplicate the electronic submission are 
not necessary as all comments submitted to http://www.regulations.gov 
will be posted for public review and are part of the official docket 
record. Should you, however, wish to submit written comments via 
regular or express mail, they should be sent to the Office of General 
Counsel, United States Marshals Service, 2604 Jefferson Davis Highway, 
Alexandria, VA 22301.

[[Page 21863]]


FOR FURTHER INFORMATION CONTACT: Joe Lazar, Associate General Counsel, 
United States Marshals Service, 2604 Jefferson Davis Highway, 
Alexandria, VA 22301, telephone number (202) 307-9054 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION:

Legal Authority for the United States Marshals Service 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 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 of services rendered and hours expended at 
that time, e.g., salaries, overhead. 56 FR 2436-01 (Jan. 23, 1991). Due 
to an increase in the salaries and benefits of United States Marshals 
Service personnel over time, the initial fee schedule was amended in 
2000, see 65 FR 47859-01 (Aug. 4, 2000), and again in 2008, see 73 FR 
69552-01 (Nov. 19, 2008). 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 United States 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 United States 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 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(a)(2). 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 may include an ``appropriate share'' of: (a) 
``[d]irect and indirect personnel costs, including salaries and fringe 
benefits such as medical insurance and retirement''; (b) ``[p]hysical 
overhead, consulting, and other indirect costs including material and 
supply costs, utilities, insurance, travel, and rents or imputed rents 
on land, buildings, and equipment''; (c) ``management and supervisory 
costs''; and (d) ``costs of enforcement, collection, research, 
establishment of standards, and regulation.'' Id. sec. 6(d)(1).

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 and again in 2008. The 2008 rates, 
which are still being charged, are set forth at 28 CFR 0.114(a) as 
follows:
     For process forwarded for service from one U.S Marshals 
Service office or suboffice to another--$8 per item forwarded;
     For process served by mail--$8 per item mailed;
     For process served or executed personally--$55 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--$55 per person per 
hour for each item served, plus travel costs and any other out-of-
pocket expenses.
     For copies at the request of any party--$.10 per page;
     For preparing notice of sale, bill of sale, or U.S. 
Marshal deed--$20 per item;
     For keeping and advertisement of property attached--actual 
expenses incurred in seizing, maintaining, and disposing of the 
property.
    In 2012, the United States Marshals Service conducted an analysis 
to determine whether, in light of the increase in salaries and expenses 
of its workforce over the previous 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.............................................          $32.97
Law Enforcement Availability Pay........................            8.24
Fringe Benefits.........................................           16.90
Indirect Costs..........................................            7.41
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    Total Personnel Costs...............................           65.52
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    The ``hourly wage'' in this module reflects the hourly basic rate 
for law enforcement officers at Grade 12, Step 1, as set forth in the 
Office of Personnel Management's 2012 Salary Table for the ``rest of 
the United States'' (available at http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2012/law-enforcement-officer/rus_leo_h.pdf). The cost of Law Enforcement Availability Pay also was 
factored into the hourly wage of an average Criminal Investigator 
(Deputy U.S. Marshal).\1\ The fringe benefits rate reflected 41 percent 
of total wage costs. Finally, the indirect costs, which reflected the 
costs of administrative services, including management/supervisory 
compensation and benefits, depreciation, utilities, supplies, and 
equipment, constituted approximately 18 percent of the total wage 
costs. As a result of the cost module, the United States 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, Public Law 
103-329, tit. VI, sec. 633, 108 Stat. 2425 (1994) (codified at 5 
U.S.C. 5545a), provides that law enforcement officers, such as 
Criminal Investigators (Deputy U.S. Marshals), who are required to 
work unscheduled hours in excess of each regular work day, are 
entitled to premium pay totaling 25 percent of 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 United States Marshals Service 
is proposing to charge $65 per hour (or portion thereof) for each item 
served by one United States Marshals Service law enforcement officer. 
This represents a less than 20 percent increase ($10 per hour) from the 
existing fee for serving process established in 2008.

[[Page 21864]]

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 United States Marshals Service collected 
approximately $1,245,000 in service-of-process fees in FY2012.\2\ The 
implementation of this proposed fee structure would provide the United 
States Marshals Service with an estimated additional $235,000 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 four-year period.
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    \2\ This amount does not include $986,000 in United States 
Marshals Service commissions collected for sales during FY2012. 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 United States Marshals Service will be minimal. The 
service of process fees will 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 
will be increased by only $10 per hour from the previous rate increase 
more than four 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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
section 1(b) of Executive Order 12866 (``Regulatory Planning and 
Review''), and with section 1(b) of Executive Order 13563 (``Improving 
Regulation and Regulatory Review'').
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866, and accordingly this rule has not been reviewed by the Office of 
Management and Budget.
    Further, both Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. The Department has assessed the costs and 
benefits of this regulation and believes that the regulatory approach 
selected maximizes net benefits.

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 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 et seq.).

List of Subjects in 28 CFR Part 0

    Authority delegations (Government agencies), Government employees, 
Organization and functions (Government agencies), Privacy, Reporting 
and recordkeeping requirements, Whistleblowing.

    Accordingly, Title 28, Part 0, Subpart T of the Code of Federal 
Regulations is proposed to be 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.

0
2. In Sec.  0.114, amend paragraph (a)(3) by removing the fee ``$55'' 
and adding in its place the fee ``$65''.

    Dated: April 1, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013-08158 Filed 4-11-13; 8:45 am]
BILLING CODE 4410-04-P