[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