Costs of Incarceration

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[AG ORDER No. 1932-94]

Costs of Incarceration

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule provides for the collection and establishment

of a fee to cover the cost of incarceration of inmates committed to the

custody of the Attorney General, and for the further administration of

this procedure by the Director, Bureau of Prisons. This rule is

promulgated to implement newly enacted statutory authority on

recovering the costs of incarceration. The rule also is intended to

help ensure the continued efficient operation of federal correctional

institutions, including the provision of beneficial programming for

inmates.

EFFECTIVE DATE: December 27, 1994.

FOR FURTHER INFORMATION CONTACT:

Roy Nanovic, Office of General Counsel, Bureau of Prisons, HOLC Room,

754, 320 First Street, NW., Washington, DC 20534, telephone (202) 514-

6655.

SUPPLEMENTARY INFORMATION: On April 5, 1994, the Department of Justice

published a proposed rule, to be codified at 28 CFR part 0, providing

for the assessment and collection of a fee to cover the costs of

incarceration of inmates committed to the custody of the Attorney

General, and for the further administration of this procedure by the

Director, Bureau of Prisons. (59 FR 15880.) The other provisions for

the administration and collection of the fee had been contained in a

proposed rule previously published on June 28, 1993. These provisions

will be promulgated by the Bureau of Prisons (Bureau) in a separate

document.

Comments on the proposed rule were received from one individual. A

portion of these comments related to the provisions previously proposed

on June 28, 1993 which are to appear in the Bureau's final rule. These

comments are noted here and will be fully addressed in the Bureau's

document.

The commenter objected to the proposed rule stating that the fee

was clearly a punishment which would be additional to any imposed by

the court. The commenter stated that the basis of the proposed rule was

unexplained and alleged that the fee would prove to be an economic

hardship to inmates, that inmates would be at greater risk to return to

criminal behavior upon release from prison, and that families of

inmates would be impoverished through application of the regulations.

In response, the Department notes that the regulations implement the

clearly stated provisions of the statute to establish and collect a fee

to cover the costs of confinement. The statute (Pub. L. 102-395,

section 111, 106 Stat. 1828, 1842) and implementing Bureau regulations

also clearly provide for protection against unduly burdening the inmate

or the inmate's dependents, including cases where a judge has imposed

or waived a fine pursuant to section 5E1.2 (f) and (i) of the United

States Sentencing Guidelines, or any successor provisions. Further

discussion of these protections are contained in the final rule to be

published by the Bureau of Prisons.

The commenter claimed that the proposed rule was unfair to pretrial

inmates who cannot afford bail. The Department notes that the statute

and regulations are not applicable to pretrial inmates.

The commenter objected to the delegation to the Director of Bureau

of Prisons of the authority to collect the fine and to promulgate all

regulations concerning the collection of the fee, claiming that the

Director did not have the expertise for collecting the fee and was not

in a position to understand the ramifications of imposing the fee. In

making this point, the commenter suggested that a judge was better

suited to understand ``* * * the ramifications of this punishment fine

[sic].'' In response, the Department notes that existing Bureau

regulations on inmate financial responsibility (see 28 CFR part 545,

subpart B) demonstrate the Bureau's expertise in such matters. As noted

above, the fee to cover the cost of incarceration is required under

statutory authority and further delegation of this authority by the

Attorney General outside the executive branch, as suggested by the

commenter, would be inappropriate.

The commenter disagreed with the Attorney General's certification

pursuant to 5 U.S.C. 605(b) that the rule will not have a significant

economic impact on a substantial number of small entities, arguing that

imprisoned people may own small businesses in whole or in part. As

noted in its response to comment in the April 5, 1994 proposed rule,

the Attorney General's certification pursuant to the Regulatory

Flexibility Act (RFA), 5 U.S.C. 601-12, is appropriate in this case.

Inmates and their families in general do not satisfy the definition of

a ``small entity'' under the Act. Furthermore, any inmate who owns a

small business in whole or in part is separately enjoined by Bureau

regulations from conducting such business while incarcerated.

The commenter objected to the provision treating revocation of

parole or supervised release as a separate period of incarceration for

which a fee may be imposed. As previously noted in its response to

comment in the April 5, 1994 proposed rule, the Department believes

this interpretation is reasonable because, in each instance, the

offender's conduct results in a distinct incarceration period and an

additional expense to the Attorney General for the cost of the

confinement.

The commenter expressed concern over the determination of the exact

cost of imprisonment, citing higher figures allegedly mentioned in news

stories. The Department notes that the determination of each year's fee

through computation of the formula contained in Sec. 0.96c(b) is

designed to prevent any confusion over what is the cost of

incarceration in the federal system.

This rule is a matter of internal department management. It will

not have a significant economic impact on a substantial number of small

entities. This rule was not reviewed by the Office of Management and

Budget pursuant to Executive Order 12866.

List of Subjects in 28 CFR Part O

Authority delegations (Government agencies), Government employees,

Organization and functions (Government agencies), Whistleblowing.

Accordingly, by virtue of the authority vested in the Attorney

General by law, including 5 U.S.C. 301 and 28 U.S.C. 509-510, part O of

title 28 of the Code of Federal Regulations is amended as follows:

PART O--[AMENDED]

1. The authority citation for 28 CFR part O continues to read as

follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

2. In subpart Q, a new Sec. 0.96c is added to read as follows:

Sec. 0.96c Cost of incarceration.

(a) The Attorney General is required to establish and collect a fee

to cover the cost of one year of incarceration. These provisions apply

to any person who is convicted in a United States District Court and

committed to the custody of the Attorney General, and who begins

service of sentence on or after December 27, 1994. For the purposes of

this subpart, revocation of parole or supervised release shall be

treated as a separate period of incarceration for which a fee may be

imposed.

(b) The fee to cover the costs of incarceration shall be calculated

by dividing the number representing the obligation encountered in

Bureau of Prisons facilities (excluding activation costs) by the number

of inmate-days incurred for the year, and by then multiplying the

quotient by 365. The resulting figure represents the average cost to

the Bureau for confining an inmate for one year.

(c) The Director of the Bureau of Prisons is delegated the

authority to collect the fee to cover the cost of incarceration from

inmates committed to the custody of the Attorney General and to

promulgate all regulations concerning the collection of the fee.

(d) The Director shall review and determine the amount of the fee

not less than annually in accordance with the formula set forth in

paragraph (b) of this section. The Director shall publish each year's

fee as a Notice in the Federal Register.

Dated November 15, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-29029 Filed 11-23-94; 8:45 am]

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