Cost of Incarceration Fee

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]

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