[Federal Register Volume 79, Number 1 (Thursday, January 2, 2014)]
[Proposed Rules]
[Pages 78-81]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31021]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 527
[BOP-1165-P]
RIN 1120-AB65
Transfer of Offenders to Foreign Countries
AGENCY: Bureau of Prisons, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to
streamline its regulations on transferring offenders to foreign
countries by eliminating language that constitutes agency guidance to
staff. Guidance language will be retained in the relevant Bureau
policy.
DATES: Comments due by March 3, 2014.
ADDRESSES: Comments should be submitted to the Rules Unit, Office of
General Counsel, Bureau of Prisons, 320 First Street NW., Washington,
DC 20534. You may also comment via the Internet to BOP at
[email protected] or by using the 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 made available for public inspection online at
www.regulations.gov. Such information includes personal identifying
information (such as your name, 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
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
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.
Proposed Rule
In this document, the Bureau of Prisons (Bureau) proposes to
streamline its regulations on transferring offenders to or from foreign
countries by eliminating language that constitutes agency guidance to
staff. Guidance language will be retained in the relevant Bureau
policy. Below is an analysis of each new proposed section.
Section 527.40 Purpose and Scope
This section more concisely describes the statutory authority (18
U.S.C. 4100, et seq.) for the Bureau's procedures for transferring
offenders to foreign countries and states that the purpose of this
subpart is to describe those procedures. We propose to delete obsolete
references to Public Law 95-144, as it has been codified as 18 U.S.C.
4100, and also propose to delete the recitation of authority which
stated that ``18 U.S.C. 4102 authorizes the Attorney General to act on
behalf of the United States in regard to such treaties. In accordance
with the provisions of 28 CFR 0.96b, the Attorney General has delegated
to the Director of the Bureau of Prisons, and to designees of the
Director, the authority to receive custody of, and to transfer to and
from the United States, offenders in compliance with the conditions of
the treaty.'' This authority is stated elsewhere in regulation and in
the Authority section preceding these regulations and is therefore not
necessary to repeat in these regulations.
Section 527.41 Definitions
This section continues to define the terms ``treaty nation,''
``state prisoner,''
[[Page 79]]
``departure institution,'' and ``admission institution.'' We make a few
minor changes to clarify that ``treaty nation'' is ``a country with
which the United States has a transfer treaty relationship either
through a bilateral treaty or multilateral transfer convention,''
instead of the former language, which incorrectly stated that countries
enter into treaties ``with the United States on the Execution of Penal
Sentences.'' This language is not common to all transfer agreements,
which are normally made through bilateral treaties or multilateral
transfer conventions with several countries at once or future countries
who will accede to the convention.
We also clarify that an inmate can be a ``citizen or national'' of
a foreign country, not just a citizen.
Section 527.42 Limitations on Transfer of Offenders to Foreign
Countries
This section more concisely states the previous substantive
provisions indicating that an inmate may not be considered for return
to the inmate's country of citizenship or nationality unless the inmate
satisfies specific requirements imposed by 18 U.S.C. 4100-4115 and the
transfer treaties and conventions.
We delete subsection (a), which stated that an inmate in custody
for civil contempt may not be considered for return to the inmate's
country of citizenship; and subsection (b), which stated that an inmate
with a committed fine may not be considered for return to the inmate's
country of citizenship without the United States court's permission.
Both of these exceptions are obscure limitations that have not arisen
for the Bureau and therefore do not need to be identified in
regulation.
In this section, we also propose to delete language indicating
that, ``[w]hen considered appropriate, the Warden may contact the
sentencing court to request the court's permission to process the
inmate's application for return to the inmate's country of
citizenship.'' This language is the Director's guidance to the Warden,
and is more appropriate for implementing text in policy than regulation
text.
Section 527.43 Notification of Inmates
This section continues to state that inmates will be notified
regarding information on international offender transfers through the
institution's admission and orientation program and by the case manager
of an inmate who is a citizen or national of a treaty nation. This
section also continues to indicate that the inmate must be given
individual notice of the availability of the transfer program, provided
with an opportunity to inquire about transfer to the country of which
the inmate is a citizen or national, and informed of the procedures set
forth in this part. This section was rewritten for clarity. No
substantive language or requirements were changed in this section.
Section 527.44 Request for Transfer to Country of Citizenship or
Nationality
This section consists only of current Sec. 527.44(a), unchanged,
which states that an inmate who is qualified for and desires to return
to the inmate's country of citizenship or nationality for service of a
sentence imposed in a United States Court must indicate the inmate's
interest by completing and signing the appropriate form and giving it
to Bureau staff for further processing. The rest of Sec. 527.44 is
split between the following two proposed regulations. This
reorganization is being proposed for clarity.
Section 527.45 Bureau Processing of the Transfer Request
This section consists of the substance of current Sec. Sec.
527.44(b) through (d). It more concisely indicates that the Warden will
forward the transfer application to the Assistant Director,
Correctional Programs Division, Central Office, who will then review
the material, submit it to the Department of Justice for review, and
notify the inmate of determinations made by the Department of Justice.
Section 527.46 Transfer Procedures
This section consists of the substance of current Sec. 527.44(e)
through (h), which describe transfer procedures. This regulation states
that if the Department of Justice approves the transfer request, the
treaty nation will be asked to consent to the transfer of its citizen
or national, and the inmate will be informed of the determination. If
the treaty nation consents, the United States will arrange a consent
verification hearing, held before a U.S. Magistrate Judge or other
judicial officer as specified in 18 U.S.C. 4107 and 4108. If the
foreign national prisoner consents to the transfer, the Department of
Justice will notify the transfer nation.
This section also indicates that following the verification
hearing, the Bureau will arrange for delivery of the inmate to the
authorities of the country of citizenship or nationality. We propose to
delete two provisions, currently Sec. 527.44(h)(1) and (2), which
state that the Assistant Director shall advise the Warden of these
arrangements and that the Warden shall arrange for the inmate to be
transported to the foreign authorities and assure that the required
documentation accompanies each inmate transported. Both of these
provisions are guidance to staff and are more appropriately retained in
implementing text in policy.
Section 527.47 Transfer of State Prisoners to Other Countries
This section repeats verbatim current Sec. 527.45, which states
that the Bureau may assume custody of a state prisoner who has been
approved for transfer to a treaty nation for the purpose of
facilitating the transfer to the treaty nation. Once approved, the
state is not required to contract for the placement of the prisoner in
federal custody, nor to reimburse the United States for the cost of
confinement (as would ordinarily be required by 18 U.S.C. 5003).
Section 527.48 Transfer of American National Prisoners From Foreign
Countries
This section more concisely encompasses current Sec. 527.46,
Receiving United States citizens from other countries. We simply state
that the Bureau is responsible for sending escorts to foreign countries
to retrieve American national prisoners who have been approved for
transfer and have had their consent verification hearing. In addition,
the Bureau must make transfer arrangements and coordinate with the U.S.
Parole Commission for proceedings to determine how the inmate's
sentence will be administered.
We propose to delete the following subparagraphs, however, because
they are guidance to staff which does not need to be in regulation:
Subparagraph (a) is direction to staff accepting custody of
American inmates from a foreign authority to ensure that particular
documentation, such as a certified copy of the sentence, a statement
detailing the offense, and citizenship papers, is available prior to
accepting custody of the inmate.
Subparagraph (b) is direction to the Assistant Director,
Correctional Programs Division, to direct staff to escort the offender
from the transporting country to the admission institution, citing 28
CFR 0.96b as the authority to escort the offender. It also directs
Wardens to make appropriate housing requirements with a nearby jail if
an admission institution is not able to accept the inmate.
Subparagraph (c) requires staff to arrange for a newly arrived
inmate to receive a complete physical examination, advise the local
U.S. Probation Office of the inmate's arrival, and notify the U.S.
Parole Commission of the inmate's arrival and projected release date.
[[Page 80]]
Subparagraph (d) directs staff to implement release procedures if
staff determine that an inmate is entitled to immediate release via
mandatory release or expiration of sentence with credits applied, but
only after medical clearance and the results of an FBI fingerprint
check.
This language is the Director's guidance to staff, and is more
appropriate for implementing text in policy than regulation text. It
will be retained in policy guidance, as will all staff guidance deleted
from these regulations.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review, section 1(b),
``Principles of Regulation.'' The Director, Bureau of Prisons, has
determined that this proposed rule is not a ``significant regulatory
action'' under Executive Order 12866, section 3(f), and accordingly
this proposed rule has not been reviewed by the Office of Management
and Budget.
Executive Order 13132
This proposed 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 EO 13132, we determine
that this proposed 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. 605(b)), reviewed this proposed 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.
List of Subjects in 28 CFR Part 527
Transfer of offenders to or from foreign countries.
Charles E. Samuels, Jr.,
Director, Bureau of Prisons.
Under rulemaking authority vested in the Attorney General in 5
U.S.C. 301 and 28 U.S.C. 509, 510, and delegated to the Director,
Bureau of Prisons, we propose to amend 28 CFR part 527 as set forth
below:
Subchapter B--Inmate Admission, Classification, and Transfer
PART 527--TRANSFERS
0
1. The authority citation for 28 CFR part 527 continues to read as
follows:
Authority: 5 U.S.C. Sec. 301; 18 U.S.C. 3565, 3569, 3621,
3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987), 4100-4115, 4161-4166,
(Repealed in part as to offenses committed on or after November 1,
1987), 4201-4218, 5003, 5006-5024 (Repealed October 12, 1984 as to
offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28
CFR 0.95-0.99.
0
2. Revise subpart E to read as follows:
Subpart E--Transfer of Offenders to Foreign Countries
Sec.
527.40 Purpose and scope.
527.41 Definitions.
527.42 Limitations on transfer of offenders to foreign countries.
527.43 Notification of inmates.
527.44 Request for transfer to country of citizenship or
nationality.
527.45 Bureau determination on request for transfer.
527.46 Transfer procedures.
527.47 Transfer of state prisoners to other countries.
Subpart E--Transfer of Offenders to Foreign Countries
Sec. 527.40 Purpose and scope.
This subpart describes the Bureau of Prisons (Bureau) procedures
regarding its role in the transfer of offenders to foreign countries
and the transfer of American offenders back to the United States
pursuant to 18 U.S.C. 4100, et seq., and applicable transfer treaties
and conventions.
Sec. 527.41 Definitions.
For the purpose of this rule, the following definitions apply.
(a) Treaty Nation. A country with which the United States has a
transfer treaty relationship either through a bilateral treaty or a
multilateral transfer convention.
(b) State Prisoner. An inmate serving a sentence imposed in a court
in one of the states of the United States, or in a territory or
commonwealth of the United States.
(c) Departure Institution. The Bureau of Prisons institution to
which an eligible inmate is finally transferred for return to the
country of which the inmate is a citizen or national.
(d) Admission institution. The Bureau of Prisons institution where
a United States citizen or national-inmate is first received from a
treaty nation.
Sec. 527.42 Limitations on transfer of offenders to foreign
countries.
The transfer treaties and conventions, as well as 18 U.S.C. 4100-
4115, impose specific requirements that an inmate must satisfy in order
to be returned to his or her country of citizenship or nationality.
Sec. 527.43 Notification of inmates.
Foreign national inmates will be notified about the International
Prisoner Transfer Program and the procedures to follow to apply for
transfer as follows:
(a) Through information provided in the institution's admission and
orientation program; and
(b) Through individual notice given to an inmate who is a citizen
or national of a treaty nation. The notice must:
(1) Reiterate the availability of the transfer program;
(2) Provide the inmate with an opportunity to inquire about
transfer to the country of which the inmate is a citizen or national;
and
(3) Inform the inmates of the procedures set forth in this part.
Sec. 527.44 Request for transfer to country of which inmate is a
citizen or national.
An inmate who is eligible for and desires to transfer to the
country of which the inmate is a citizen or national for service of a
sentence imposed in a United States Court must indicate the inmate's
interest by completing and signing the appropriate form and giving it
to Bureau staff for further processing.
[[Page 81]]
Sec. 527.45 Bureau determination on request for transfer.
The following is the process by which determinations are made on an
inmate's request to be transferred to the country of which the inmate
is a citizen or national to serve a sentence imposed in a United States
Court.
(a) Warden's determination. Upon verifying that the inmate is
eligible for transfer, the Warden forwards all relevant information,
including a complete application package, to the Assistant Director,
Correctional Programs Division, Central Office.
(b) Central Office and Department of Justice determination.
(1) The Assistant Director, Correctional Programs Division reviews
the submitted material and forwards the application package to the
Department of Justice for review.
(2) The Department of Justice notifies the inmate of the
determinations made.
Sec. 527.46 Transfer procedures.
(a) Treaty nation determination. If the Department of Justice
approves the transfer request, the treaty nation will be asked if it
consents to the transfer of its citizen or national. The inmate will be
informed of the determination made by the treaty nation.
(b) Transfer to departure institution. The Bureau and the
Department of Justice will arrange for the inmate to be transferred to
an appropriate departure institution.
(c) Consent verification hearing. If the treaty nation consents to
the transfer, the United States will arrange a consent verification
hearing for the prisoner as required by 18 U.S.C. 4107, 4108. This
hearing is held before a U.S. Magistrate Judge or other judicial
officer as specified in sections 4107 and 4108. The Bureau must ensure
that the prisoner is available and present at the consent verification
hearing.
(d) Transfer to departure institution and foreign retrieval of
inmate. If the foreign national prisoner gives consent to transfer at
the consent verification hearing, the Department of Justice will notify
the treaty transfer nation.
Sec. 527.47 Transfer of state prisoners to other countries.
The Bureau of Prisons may assume custody of a state prisoner who
has been approved for transfer to a treaty nation for the purpose of
facilitating the transfer to the treaty nation. Once the state prisoner
has consented to the transfer at the consent verification hearing, the
Bureau assumes custody of the prisoner. The state is not required to
contract for the placement of the prisoner in federal custody, nor to
reimburse the United States for the cost of confinement (as would
ordinarily be required by 18 U.S.C. 5003).
Sec. 527.48 Transfer of American national prisoners from foreign
countries.
The Bureau of Prisons is responsible for:
(a) Sending escorts to foreign countries to retrieve American
national prisoners who have been approved for transfer to the United
States and who have had their consent verified at the consent
verification hearing specified in 18 U.S.C. 4108; and
(b) Making logistical arrangements for the transfer and
coordinating with the United States Parole Commission for proceedings
to determine how the sentence will be administered.
[FR Doc. 2013-31021 Filed 12-31-13; 8:45 am]
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