[Federal Register Volume 78, Number 189 (Monday, September 30, 2013)]
[Rules and Regulations]
[Pages 59817-59819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23692]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 0

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


Revision to United States Marshals Service Fees for Services

AGENCY: United States Marshals Service, Department of Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

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 April 
12, 2013, at 78 FR 21862. Only one comment was received within the 60-
day comment period and that comment supported adoption of the rule. 
Accordingly, the proposed rule is finalized without change.

DATES: Effective October 30, 2013.

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, 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 United 
States Marshals Service personnel over time, the initial fee schedule 
was amended in 2000, see 65 FR 47859 (Aug. 4, 2000), and again in 2008, 
see 73 FR 69552 (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. When a 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),'' the statute takes precedence over Circular No. A-25. 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 generally 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 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:
    (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--$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

[[Page 59818]]

employee, agent, or contractor who is needed to serve process--$55 per 
person per hour for each item served, plus travel costs and any other 
out-of-pocket expenses.
    (4) For copies at the request of any party--$.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 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
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Hourly Wage..................................................      32.97
Law Enforcement Availability Pay.............................       8.24
Fringe Benefits..............................................      16.90
Indirect Costs...............................................       7.41
                                                              ----------
    Total Personnel Costs....................................      65.52
------------------------------------------------------------------------

    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.pfd). 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 and 
benefits 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 personally serving 
process.
---------------------------------------------------------------------------

    \1\ The Law Enforcement Availability Pay Act of 1994, Public Law 
103-329, 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 a 25% premium pay in addition to their base salary.
---------------------------------------------------------------------------

    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 
will 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 revised in 2008.
    Only one comment was received on the proposed rule within the 60-
day comment period and that comment supported adoption of the rule. 
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 approximately 
$1,245,000 in service of process fees in FY 2012.\2\ The implementation 
of this rule will 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.
---------------------------------------------------------------------------

    \2\ This amount does not include $986,000 in United States 
Marshals Service commissions collected for sales during FY 2012. 
This rule does not affect commissions, only the fees charged for 
service of process.
---------------------------------------------------------------------------

    The economic impact on individual entities that utilize the 
services of the United States 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 
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 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 
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 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

[[Page 59819]]

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.

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.
    Accordingly, Title 28, Part 0, Subpart T 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 
``$55'' and adding the fee ``$65'' in its place wherever it occurs.

    Dated: September 23, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013-23692 Filed 9-27-13; 8:45 am]
BILLING CODE 4410-04-P