# Costs of Incarceration > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29029 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 25, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 4410-01-M --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29029. Public record. Not legal advice.