Cost of Incarceration Fee

[Federal Register Volume 64, Number 154 (Wednesday, August 11, 1999)]
[Rules and Regulations]
[Pages 43880-43881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20650]



[[Page 43879]]

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Part V





Department of Justice





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Bureau of Prisons



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28 CFR Part 505



Cost of Incarceration Fee; Final Rule; Annual Determination of Average 
Cost of Incarceration; Notice

Federal Register / Vol. 64, No. 154 / Wednesday, August 11, 1999 / 
Rules and Regulations

[[Page 43880]]



DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 505

[BOP-1079-F]
RIN 1120-AA75


Cost of Incarceration Fee

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: The Bureau of Prisons is revising its regulations on the cost 
of incarceration fee in order to remove obsolete references and to 
eliminate redundant provisions.

EFFECTIVE DATE: August 11, 1999.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General 
Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is revising its 
regulations on the cost of incarceration fee (28 CFR part 505). A final 
rule on this subject was published in the Federal Register on December 
15, 1994 (59 FR 64781).
    The regulations are being revised in order to remove redundant 
provisions and to make organizational or editorial changes. The 
Director of the Bureau has been delegated the authority given to the 
Attorney General to assess and collect a fee from eligible inmates to 
cover the cost of incarceration. Procedures pertaining to the cost of 
incarceration fee which have been issued under authority retained by 
the Attorney General are contained in 28 CFR 0.96c.
    Section 505.1 has been revised to make clear the connection with 
the provisions issued by the Attorney General in Sec. 0.96c. 
Consequently, redundant references to the procedures in Sec. 0.96c have 
been removed from this and other sections of the Bureau's regulations. 
The title of the Bureau's regulation and other provisions have been 
revised to conform to the phrasing used in Sec. 0.96c (namely, ``cost 
of incarceration'' rather than ``costs of incarceration''). Further 
specific changes are discussed below.
    Revised Sec. 505.1 notes the statutory constraints on imposing the 
cost of incarceration fee in instances where the court imposes or 
waives a fine pursuant to the Sentencing Guidelines 5E1.2(i). Section 
505.2 has been revised to remove obsolete reference to the 1995 cost of 
incarceration fee and redundant provisions already contained in 
Sec. 0.96c. The provisions in Secs. 505.3 and 505.4 have been 
redesignated for organizational reasons. Section 505.3 now contains the 
provisions pertinent to exemption from fee assessment which were 
previously contained in former Sec. 505.4. A reference in this section 
to the United States Sentencing Guidelines has been updated in 
conformance to a revision of the sentencing guidelines. Section 505.4 
restates the provisions on calculation of assessment previously 
contained in former Sec. 505.3. Revised Sec. 505.4 clarifies that only 
one assessment for each separate period of incarceration is made for 
the inmate and includes provisions for prorating the assessment which 
had been contained in former Sec. 505.5. Section 505.6 pertaining to 
fee waiver has been redesignated as new Sec. 505.5 and has been revised 
to make consistent use of the word ``inmate''. Section 505.7 pertaining 
to procedures for payment has been redesignated as new Sec. 505.6 and 
has been revised to clarify application of the inmate financial 
responsibility program.
    Former Sec. 505.8 pertaining to procedures for appeal has been 
removed. The procedures in that section are contained in the Bureau's 
Administrative Remedy Program (28 CFR part 542) and need not be 
restated separately. Finally, former Sec. 505.9 pertaining to 
procedures for final disposition has been redesignated as new 
Sec. 505.7.
    Because these changes are either organizational or editorial in 
nature and have no adverse impact upon inmates, the Bureau finds good 
cause for exempting the provisions of the Administrative Procedure Act 
(5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity 
for public comment, and delay in effective date. Members of the public 
may submit comments concerning this rule by writing to the previously 
cited address. These comments will be considered but will receive no 
response in the Federal Register.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule pertains to the 
correctional management of offenders committed to the custody of the 
Attorney General or the Director of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

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 
$100,000,000 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 Sec. 804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 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.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Roy Nanovic, Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First St., 
Washington, DC 20534; telephone (202) 514-6655.

[[Page 43881]]

List of Subjects in 28 CFR Part 505

    Prisoners.
Kathleen Hawk Sawyer,
Director, Bureau of Prisons.

    Accordingly, pursuant to the rulemaking authority vested in the 
Attorney General in 5 U.S.C. 552(a) and delegated to the Director, 
Bureau of Prisons in 28 CFR 0.96(p) and 0.96c, part 505 in subchapter A 
of 28 CFR, chapter V is revised as set forth below.

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 505--COST OF INCARCERATION FEE

Sec.
505.1  Purpose and scope.
505.2  Annual determination of average cost of incarceration.
505.3  Inmates exempted from fee assessment.
505.4  Calculation of assessment by unit staff.
505.5  Waiver of fee by Warden.
505.6  Procedures for payment.
505.7  Procedures for final disposition.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 31 U.S.C. 3717; Pub. L. 
102-395, 106 Stat. 1842 (18 U.S.C. 4001 note); 28 CFR 0.95-0.99.


Sec. 505.1  Purpose and scope.

    This part establishes procedures for the assessment and collection 
of a fee to cover the cost of incarceration. The Director of the Bureau 
of Prisons has been delegated the authority of the Attorney General 
(see 28 CFR 0.96c) to assess and collect a fee imposed by the Bureau in 
the event the court neither imposes nor waives a fine pursuant to the 
Sentencing Guidelines 5E1.2(d). For purposes of this part, revocation 
of parole or supervised release is to be treated as a separate period 
of incarceration for which a fee may be imposed.


Sec. 505.2  Annual determination of average cost of incarceration.

    Pursuant to 28 CFR 0.96c, the Bureau of Prisons staff is 
responsible for calculating the annual average cost of incarceration. 
This calculation is reviewed annually and the revised figure is 
published as a notice in the Federal Register.


Sec. 505.3  Inmates exempted from fee assessment.

    Inmates who began service of sentence before January 1, 1995, or 
who have had a fine either imposed or expressly waived by the United 
States District Court, pursuant to Section 5E1.2 (e) of the United 
States Sentencing Guidelines, or any successor provisions, are exempt 
from fee assessment otherwise required by this part.


Sec. 505.4  Calculation of assessment by unit staff.

    Bureau of Prisons Unit Team staff are responsible for computing the 
amount of the fee to be paid by each inmate who has not been exempted 
from fee assessment. The inmate will only be assessed an amount once 
for the cost of incarceration for each separate period of 
incarceration.
    (a) Unit Team staff are to rely exclusively on the information 
contained in the Presentence Investigation Report and findings and 
orders of the sentencing court in order to determine the extent of an 
inmate's assets, liabilities and dependents.
    (b) The fee is assessed in accordance with the following formula: 
If an inmate's assets are equal to or less than the poverty level, as 
established by the United States Department of Health and Human 
Services and published annually in the Federal Register, no fee is to 
be imposed. If an inmate's assets are above the poverty level, Unit 
Team staff are to impose a fee equal to the inmate's assets above the 
poverty level up to the average cost to the Bureau of Prisons of 
confining an inmate for one year.
    (c) If the amount of time that the inmate is in custody is less 
than 334 days (including pretrial custody time), the maximum fee to be 
imposed is to be computed by prorating the fee on a monthly basis.


Sec. 505.5  Waiver of fee by Warden.

    The Warden may reduce or waive the fee if the inmate establishes 
that:
    (a) He or she is not able and, even with the use of a reasonable 
installment schedule, is not likely to become able to pay all or part 
of the fee, or
    (b) Imposition of a fee would unduly burden the inmate's 
dependents.


Sec. 505.6  Procedures for payment.

    Fees imposed pursuant to this part are due and payable after notice 
of the Unit Team actions. When the inmate participates in the inmate 
financial responsibility program (see 28 CFR part 545, subpart B), fees 
are to be included under the category ``other federal government 
obligations'' and are to be paid before other financial obligations 
included in that same category. Fees may be subject to interest 
charges.


Sec. 505.7  Procedures for final disposition.

    Before the inmate completes his or her sentence, Unit Team staff 
must review the status of the inmate's fee. Any unpaid amount will be 
referred for collection in accordance with Federal Claims Collection 
Standards (4 CFR Chapter II).

[FR Doc. 99-20650 Filed 8-10-99; 8:45 am]
BILLING CODE 4410-05-P