[Federal Register Volume 73, Number 204 (Tuesday, October 21, 2008)]
[Rules and Regulations]
[Pages 62440-62443]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24928]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 570
[BOP Docket No. 1151-I]
RIN 1120-AB51
Pre-Release Community Confinement
AGENCY: Bureau of Prisons, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises
current regulations on pre-release community confinement to conform
with the requirements of the Second Chance Act of 2007, approved April
9th, 2008 (Pub. L. 110-199; 122 Stat. 657) (``Second Chance Act'').
DATES: This rule is effective October 21, 2008. Comments are due by
December 22, 2008.
ADDRESSES: Submit comments to the Rules Unit, Office of General
Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC
20534. You may view an electronic version of this rule at http://
www.regulations.gov. You may also comment via the Internet to the
Bureau at BOPRULES@BOP.GOV or by using the http://www.regulations.gov
comment form for this regulation. When submitting comments
electronically, you must include the BOP Docket No. in the subject box.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and are available for public inspection online at http://
www.regulations.gov. Such information includes personal identifying
information (such as your name,
[[Page 62441]]
address, etc.) voluntarily submitted by the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
contains so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
Changes Made by This Rule
In this document, the Bureau revises current regulations on pre-
release community confinement in 28 CFR part 570, subpart B, to conform
with the requirements of the Second Chance Act of 2007, approved April
9th, 2008 (Pub. L. 110-199; 122 Stat. 657) (``Second Chance Act'').
The community confinement regulations currently implement the
Bureau's categorical exercise of discretion for designating inmates to
community confinement. The regulations state that the Bureau will
designate inmates to community confinement only as a condition of pre-
release custody and programming, during the last ten percent of the
prison sentence being served, for a period not exceeding six months,
unless specific Bureau programs allow greater periods of community
confinement.
To conform these regulations to the language of the Second Chance
Act, we make the following revisions:
Section 570.20 Purpose
In this regulation, we describe the Bureau's procedures for
designating inmates to pre-release community confinement or home
detention. We also provide a new definition of the term ``community
confinement.'' Section 231(f) of the Second Chance Act amended 18
U.S.C. 3621 by adding a new subsection (g). New 18 U.S.C. 3621(g)(2)
defines the term ``community confinement'' for purposes of that
subsection by adopting the meaning ``given that term in application
notes under section 5F1.1 of the Federal Sentencing Guidelines Manual''
in effect on the date of enactment of the Act. On April 9, 2008, the
application notes to United States Sentencing Guideline (USSG) Sec.
5F1.1 read as follows:
``Community confinement'' means residence in a community treatment
center, halfway house, restitution center, mental health facility,
alcohol or drug rehabilitation center, or other community facility; and
participation in gainful employment, employment search efforts,
community service, vocational training, treatment, educational
programs, or similar facility-approved programs during non-residential
hours.
Although new subsection 18 U.S.C. 3621(g) relates on its face only
to ``continued access to medical care,'' we adopt the definition of
community confinement given in this provision for the purposes of
subpart B as amended. The Second Chance Act itself variously uses the
terms ``community confinement,'' ``community corrections agencies,''
``community corrections facilities,'' and ``community confinement
facilities,'' but it does so in contexts that indicate that these terms
are meant to refer to the concept of community confinement generally.
We therefore adopt the definition in 18 U.S.C. 3621(g) for clarity and
consistency, and to maintain uniformity in application of the Second
Chance Act provisions, we adopt this definition of ``community
confinement'' as applicable in the context of these regulations. For
clarity, we also add a parenthetical that explains that the Bureau
includes residential re-entry centers in the definition of ``community
confinement.''
In this section, we also add a definition of ``home detention.''
Section 231(g)(5)(B) of the Second Chance Act provides that ``[t]he
term `home detention' has the same meaning given the term in the
Federal Sentencing Guidelines as of the date of the enactment of this
Act.'' Once more, although this reference to the Federal Sentencing
Guidelines is articulated in a different context, we deem it prudent to
model our definition on that given by the Federal Sentencing
Guidelines, as suggested by the Second Chance Act, for clarity and
consistency in application.
In this section, therefore, we include a definition of ``home
detention'' which is derived from USSG 5F1.2. Specifically, we define
``home detention'' as a program of confinement and supervision that
restricts the defendant to his place of residence continuously, except
for authorized absences, enforced by appropriate means of surveillance
by the probation office or other monitoring authority. We add the
phrase ``or other monitoring authority'' to the definition given by
USSG 5F1.2 to allow for the possibility that the function of monitoring
may be accomplished by other federal government agencies, employees, or
contractors.
Section 570.21 Time-Frames
Section 251(a) of the Second Chance Act amends 18 U.S.C. 3624(c) to
require that the Director must, ``to the extent practicable, ensure
that a prisoner serving a term of imprisonment spends a portion of the
final months of that term (not to exceed 12 months), under conditions
that will afford that prisoner a reasonable opportunity to adjust to
and prepare for the reentry of that prisoner into the community.''
Further, section 3624(c) is amended to state that ``[t]he authority
under this subsection may be used to place a prisoner in home
confinement for the shorter of 10 percent of the term of imprisonment
of that prisoner or 6 months.''
In this section, we therefore make the following changes to conform
to the specific language in section 251(a) of the Second Chance Act:
Paragraph (a) of the revised Sec. 570.21 states that inmates may be
designated to community confinement as a condition of pre-release
custody and programming during the final months of the inmate's term of
imprisonment, not to exceed twelve months; and paragraph (b) of the
revised Sec. 570.21 states that inmates may be designated to home
detention as a condition of pre-release custody and programming during
the final months of the inmate's term of imprisonment, not to exceed
the shorter of ten percent of the term of the inmate's imprisonment or
six months.
Section 570.22 Designation
In this section, we inform inmates that they will be considered for
pre-release community confinement in a manner consistent with 18 U.S.C.
[[Page 62442]]
3621(b), determined on an individual basis, and of duration sufficient
to optimize the likelihood of successful reintegration into the
community. This section reflects the requirements of the Second Chance
Act regarding the promulgation of these regulations. Section 251(a)(6)
of the Second Chance Act requires the Bureau to implement regulations
that ensure that placements in community confinement as a condition of
pre-release custody are:
Conducted in a manner consistent with 18 U.S.C. 3621(b);
Determined on an individual basis; and
Long enough ``to provide the greatest likelihood of
successful reintegration into the community.''
Section 570.22 reflects the three factors listed above.
With regard to the requirement that determinations regarding pre-
release community confinement are ``conducted in a manner consistent
with 18 U.S.C. 3621(b),'' the Bureau will ensure that the following
factors listed in section 3621(b) will be considered in making such
determinations:
The resources of the facility contemplated;
The nature and circumstances of the offense;
The history and characteristics of the prisoner;
Any statement by the sentencing court concerning the
purpose for which the sentence was imposed or recommending a specific
type of institution; and
Any pertinent policy statements issued by the United
States Sentencing Commission.
Administrative Procedure Act
The Administrative Procedure Act (5 U.S.C. 553) allows exceptions
to notice-and-comment rulemaking for ``(A) interpretive rules, general
statements of policy, or rules of agency organization, procedure, or
practice; or (B) when the agency for good cause finds * * * that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.''
18 U.S.C. 3624(c)(6) is a new provision that requires the Bureau to
issue regulations reflecting these provisions ``not later than 90 days
after the date of the enactment of the Second Chance Act of 2007, which
shall ensure that placement in a community correctional facility by the
Bureau of Prisons is--(A) conducted in a manner consistent with section
3621(b) of this title; (B) determined on an individual basis; and (C)
of sufficient duration to provide the greatest likelihood of successful
reintegration into the community.'' Therefore, these regulations are
required to be promulgated no later than July 8, 2008, which was 90
days after the date of enactment of the Second Chance Act, April 9,
2008.
The current regulations on community confinement are not only
inconsistent with regard to the time-frames articulated by the Second
Chance Act, but also conflict with the goals of the new law by
articulating a categorical exclusion that would preclude individual
determinations.
Adopting these rules through the normal notice-and-comment
procedures would not be consistent with the short statutory time-frame
provided for implementing these regulatory changes. Requiring formal
notice-and-comment procedures would be contrary to the public interest
in this case, particularly because the revision of these regulations
will provide a greater benefit for inmates, through the possibility of
a greater community confinement time-frame than that contemplated under
the current regulations. Because this change is responsive to mandates
in legislation and is interpretive in nature, we find that normal
notice-and-comment rulemaking is unnecessary and contrary to the public
interest.
Therefore, to best comply with Congress's mandate that the revised
regulations be timely issued, we issue these changes revising subpart B
of 28 CFR part 570 as an interim final rule. We will accept comments to
this interim final rule and consider and discuss comments received
during the comment period in our final rule document.
Further, we forgo the requirement under 5 U.S.C. 552(d) which
provides for regulations to go into effect 30 days after the date of
publication for the reasons stated above. In particular, a delayed
effective date would be inconsistent with regard to the time-frames
articulated by the Second Chance Act and rapid implementation would
benefit inmates.
Executive Order 12866
This rule falls within a category of actions that the Office of
Management and Budget (OMB) has determined to constitute a
``significant regulatory action'' under section 3(f) of Executive Order
12866 and, accordingly, it was reviewed by OMB.
The Bureau has assessed the costs and benefits of this rule as
required by Executive Order 12866 section 1(b)(6) and has made a
reasoned determination that the benefits of this rule justify its
costs. This rule will have the benefit of eliminating confusion in the
courts that has been caused by the changes in the Bureau's statutory
interpretation, while allowing us to continue to operate in compliance
with the revised statute. There will be no new costs associated with
this rulemaking.
Executive Order 13132
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, under Executive Order 13132,
we determine 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, under the Regulatory
Flexibility Act (5 U.S.C. section 605(b)), reviewed this regulation and
by approving it certifies that it 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.
[[Page 62443]]
List of Subjects in 28 CFR Part 570
Prisoners.
Harley G. Lappin,
Director, Bureau of Prisons.
0
Under rulemaking authority vested in the Attorney General in 5 U.S.C.
301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of
Prisons in 28 CFR 0.96, we amend 28 CFR part 570 as set forth below.
SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE
PART 570--COMMUNITY PROGRAMS
0
1. Revise the authority citation for 28 CFR part 570 to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 751, 3621, 3622, 3624, 4001,
4042, 4081, 4082 (Repealed in part as to offenses committed on or
after November 1, 1987), 4161-4166, 5006-5024 (Repealed October 12,
1984, as to offenses committed after that date), 5039; 28 U.S.C.
509, 510.
0
2. Revise subpart B to read as follows:
Subpart B--Pre-Release Community Confinement
Sec.
570.20 Purpose.
570.21 Time-frames.
570.22 Designation.
Sec. 570.20 Purpose.
The purpose of this subpart is to provide the procedures of the
Bureau of Prisons (Bureau) for designating inmates to pre-release
community confinement or home detention.
(a) Community confinement is defined as residence in a community
treatment center, halfway house, restitution center, mental health
facility, alcohol or drug rehabilitation center, or other community
correctional facility (including residential re-entry centers); and
participation in gainful employment, employment search efforts,
community service, vocational training, treatment, educational
programs, or similar facility-approved programs during non-residential
hours.
(b) Home detention is defined as a program of confinement and
supervision that restricts the defendant to his place of residence
continuously, except for authorized absences, enforced by appropriate
means of surveillance by the probation office or other monitoring
authority.
Sec. 570.21 Time-frames.
(a) Community confinement. Inmates may be designated to community
confinement as a condition of pre-release custody and programming
during the final months of the inmate's term of imprisonment, not to
exceed twelve months.
(b) Home detention. Inmates may be designated to home detention as
a condition of pre-release custody and programming during the final
months of the inmate's term of imprisonment, not to exceed the shorter
of ten percent of the inmate's term of imprisonment or six months.
(c) Exceeding time-frames. These time-frames may be exceeded when
separate statutory authority allows greater periods of community
confinement as a condition of pre-release custody.
Sec. 570.22 Designation.
Inmates will be considered for pre-release community confinement in
a manner consistent with 18 U.S.C. section 3621(b), determined on an
individual basis, and of sufficient duration to provide the greatest
likelihood of successful reintegration into the community, within the
time-frames set forth in this part.
[FR Doc. E8-24928 Filed 10-20-08; 8:45 am]
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