[Federal Register Volume 81, Number 109 (Tuesday, June 7, 2016)]
[Proposed Rules]
[Pages 36485-36488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13294]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 571

[BOP-1110-P]
RIN 1120-AB10


Compassionate Release

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Prisons (Bureau) proposes changes to its 
regulations on compassionate release, including changing the title to 
``Reduction in Sentence in Extraordinary and Compelling 
Circumstances''; deleting language which indicates that the Bureau will 
only allow reductions in sentence for circumstances ``which could not 
reasonably have been foreseen by the court at the time of sentencing''; 
and modifying and adding language to clarify the ineligibility of 
certain inmates for reductions in sentence and the eligibility of 
District of Columbia Code felony inmates (D.C. Code felony inmates) for 
medical and geriatric release.

DATES: Written comments must be submitted on or before August 8, 2016.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Rules Unit, Office of 
General Counsel, Bureau of Prisons, phone (202) 353-8248.

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and 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 
contains 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.

SUPPLEMENTARY INFORMATION: The Bureau published a proposed rule 
revising all of the regulations in 28 CFR Subpart G on December 21, 
2006 (71 FR 76619). We also published an interim rule making a 
technical change to the regulations on February 28, 2013 (78 FR 13478). 
Subsequently, we published another interim rule on December 5, 2013 (78 
FR 73083), which provides that the Bureau's General Counsel will 
solicit the opinion of the United States Attorney in the district in 
which the inmate was sentenced when considering an inmate for 
compassionate release. It also states that the final decision is 
subject to the general supervision and direction of the Attorney 
General and Deputy Attorney General.
    We now withdraw the proposed rule published in 2006 and instead 
propose the following changes to the regulations on compassionate 
release: (1) Changing the title to ``Reduction in Sentence in 
Extraordinary and Compelling Circumstances''; (2) deleting language 
which indicates that the Bureau will only allow reductions in sentence 
for circumstances ``which could not reasonably have been foreseen by 
the court at the time of sentencing''; and (3) modifying and adding 
language to clarify the ineligibility of certain inmates for reductions 
in sentence and the eligibility of District of Columbia Code felony 
inmates (D.C. Code felony inmates) for medical and geriatric release.

[[Page 36486]]

Changing the Title to ``Reduction in Sentence in Extraordinary and 
Compelling Circumstances.''

    28 CFR part 571, subpart G, is currently entitled ``Compassionate 
Release (Procedures for the Implementation of 18 U.S.C. 3582(c)(1)(A) 
and 4205(g)).'' 28 CFR part 572, subpart E, is likewise entitled 
``Compassionate Release (Procedures for the Implementation of 
4205(g)).'' Title 18 of the United States Code, section 
3582(c)(1)(A)(i), which authorizes these regulations, does not use the 
term ``compassionate release.'' Instead, the statute states that ``the 
court, upon motion of the Director of the Bureau of Prisons, may reduce 
the term of imprisonment . . . if it finds that--(i) extraordinary and 
compelling reasons warrant such a reduction . . . .'' [Emphasis added.]
    Likewise, 18 U.S.C. 4205(g) also does not use the term 
``compassionate release,'' instead stating that ``upon motion of the 
Bureau of Prisons, the court may reduce any minimum term to the time 
the defendant has served.'' [Emphasis added.] We are therefore 
proposing to change the title of subpart G to read ``Reduction in 
Sentence in Extraordinary and Compelling Circumstances'' to more 
accurately conform to the language of the statutes. We also propose to 
replace the phrase ``compassionate release'' with ``reduction in 
sentence'' where it appears in Sec.  572.40.

Deleting Language Indicating That the Bureau Will Only Allow Reductions 
in Sentence for Circumstances ``Which Could Not Reasonably Have Been 
Foreseen by the Court at the Time of Sentencing''

    Section 571.60 is a statement of purpose and scope of the subpart. 
It describes that, ``[u]nder 18 U.S.C. 4205(g), a sentencing court, on 
motion of the Bureau of Prisons, may make an inmate with a minimum term 
sentence immediately eligible for parole by reducing the minimum term 
of the sentence to time served.'' This regulation also states that 
``[u]nder 18 U.S.C. 3582(c)(1)(A), a sentencing court, on motion of the 
Director of the Bureau of Prisons, may reduce the term of imprisonment 
of an inmate sentenced under the Comprehensive Crime Control Act of 
1984.''
    Currently, the regulation indicates that the Bureau uses these 
statutes ``in particularly extraordinary or compelling circumstances 
which could not reasonably have been foreseen by the court at the time 
of sentencing.'' However, neither the language regarding whether the 
court could reasonably foresee circumstances nor a reference to such a 
requirement is present in either statute. The Bureau has found it 
problematic and untenable to attempt to determine what the court could 
reasonably have foreseen at the time of sentencing and to apply this 
restriction in deciding whether to seek a reduction in sentence under 
this subpart. For that reason, we propose to delete the phrase ``which 
could not reasonably have been foreseen by the court at the time of 
sentencing'' throughout the subpart.

Clarifying Ineligibility of Certain Inmates for Reductions in Sentence 
and Eligibility of District of Columbia Code Felony Inmates for Medical 
and Geriatric Release

    Under section 11201 of the National Capital Revitalization and 
Self-Government Improvement Act of 1997, Pub. 105-33, 111 Stat. 71 
(codified at D.C. Code Sec.  24-101(a),(b)), the Bureau has custodial 
responsibility for felons sentenced pursuant to the District of 
Columbia Code. The Bureau also houses certain military prisoners and 
state prisoners in its facilities. The D.C. Code contains specific 
provisions that govern parole or suspension of a sentence on the basis 
of medical or geriatric conditions. See D.C. Code Sec. Sec.  24-461 to 
468. We now propose to make the following changes to clarify for 
inmates and the public the availability or unavailability of reductions 
in sentence and other forms of release to the different types of 
inmates in the Bureau's facilities: (1) Revising Sec.  571.64 to 
include military prisoners in that section's list of inmates ineligible 
for reductions in sentence under the U.S. Code; and (2) adding a new 
paragraph (b) to Sec.  571.60 stating that the Bureau may seek or 
support medical or geriatric parole or suspension of sentence for D.C. 
Code inmates in its custody and making it clear that the Bureau will 
not seek reductions in sentence for D.C. Code inmates under the U.S. 
Code.
    Currently, Sec.  571.64 reads as follows: ``The Bureau of Prisons 
has no authority to initiate a request under 18 U.S.C. 4205(g) or 
3582(c)(1)(A) on behalf of state prisoners housed in Bureau of Prisons 
facilities or D.C. Code offenders confined in federal institutions. The 
Bureau of Prisons cannot initiate such a motion on behalf of federal 
offenders who committed their offenses prior to November 1, 1987, and 
received non-parolable sentences.'' The current language does not 
mention military prisoners, who are also ineligible under these 
provisions. We propose to revise the language of Sec.  571.64 to add 
military prisoners to its list of inmates for whom the Bureau will not 
seek reductions in sentence. The proposed language in Sec.  571.64 
would no longer refer to D.C. Code offenders, because we propose to add 
a new paragraph (b) to Sec.  571.60 that explains separately what forms 
of early release the Bureau will or will not seek on behalf of D.C. 
Code inmates.
    By adding a new paragraph (b) to Sec.  571.60, the Bureau would 
make it clear that D.C. Code inmates who committed their offense on or 
after August 5, 2000, may be eligible for medical or geriatric 
suspension of sentence as described in sections 24-467 and 24-468 of 
the D.C. Code. A D.C. Code inmate in Bureau custody who meets the 
eligibility criteria of the D.C. Code may request that the Bureau seek 
such a suspension of sentence for the inmate consistent with sections 
24-467 and 24-468 of the D.C. Code. The procedures set out in sections 
571.61 through 571.63 will apply to the submission of such requests by 
inmates, and to their consideration and decision by the Bureau, 
consistent with the provisions of the D.C. Code.
    Section 571.60(b) also would make it clear that D.C. Code inmates 
who committed their offense before August 5, 2000, may be eligible for 
medical or geriatric parole as described in sections 24-461 through 24-
465 and 24-467 of the D.C. Code. A D.C. Code inmate in Bureau custody 
who meets the eligibility criteria of the D.C. Code for such parole may 
request that the Bureau forward an application and documentation to the 
United States Parole Commission consistent with sections 24-464 and 24-
465 of the D.C. Code.
    Section 571.60(b) would also make it clear that the Bureau will not 
seek reductions in sentence under 18 U.S.C. 4205(g) or 3582(c)(1)(A) on 
behalf of D.C. Code inmates. The Bureau will consider requests from 
such inmates only under the conditions described in the D.C. Code for 
medical or geriatric parole or suspension of sentence.

Other Minor Changes

    In section 571.62, Approval of request, we indicate that the 
``Bureau of Prisons makes a motion under 18 U.S.C. 4205(g) or 
3582(c)(1)(A) only after review of the request by'' the Warden, the 
General Counsel, and either the Medical Director for medical referrals 
or the Assistant Director, Correctional Programs Division for non-
medical referrals, and with the approval of the Director, Bureau of 
Prisons. We also indicate that after obtaining the opinion of either 
the Medical Director (or Acting Medical Director) or the Assistant 
Director (or Acting Assistant Director),

[[Page 36487]]

Correctional Programs Division, the Office of General Counsel will 
determine if the request warrants approval.
    We propose a minor change in this section and in section 571.63 to 
indicate that when we refer to the General Counsel, we refer to the 
Office of General Counsel, in order to indicate that multiple staff 
will be assigned review of the requests. We also make minor changes to 
indicate that either the Medical Director or the Acting Medical 
Director and either the Assistant Director, Correctional Programs 
Division, or the Acting Assistant Director, Correctional Programs 
Division, may act under this regulation. This will expedite processing 
of the requests in the event of possible absences of the Medical 
Director or Assistant Director.
    We also propose to make another minor change to the phrase 
``particularly extraordinary or compelling'' throughout the 
regulations. Under 18 U.S.C. 3582(c)(1)(A)(i), the court may, upon 
motion of the Director, grant a reduction in sentence if it finds that 
``extraordinary and compelling reasons warrant such a reduction . . . 
.'' We therefore propose to change our phrase in these regulations to 
``extraordinary and compelling'' instead of ``particularly 
extraordinary or compelling'' to conform to the language of the 
statute.

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 regulation is a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), and accordingly this 
regulation has been reviewed by the Office of Management and Budget.

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 regulation 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 regulation and 
certifies that it will not have a significant economic impact upon a 
substantial number of small entities for the following reasons: This 
regulation pertains to the correctional management of inmates committed 
to the custody of the Attorney General or the Director of the Bureau of 
Prisons. Its economic impact is limited to the Bureau's appropriated 
funds.

Unfunded Mandates Reform Act of 1995

    This regulation 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 section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This regulation 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

28 CFR Part 571

    Prisoners.

28 CFR Part 572

    Prisoners, probation and parole.

Kathleen M. Kenney,
Assistant Director/General Counsel, Federal Bureau of Prisons.

    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 propose to amend 28 CFR parts 571 and 572, 
as follows.

SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE

PART 571--RELEASE FROM CUSTODY

0
1. The authority citation for 28 CFR part 571 is revised to read as 
follows:

    Authority:  5 U.S.C. 301; 18 U.S.C. 3565; 3568 and 3569 
(Repealed in part as to offenses committed on or after November 1, 
1987), 3582, 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in 
part as to offenses committed on or after November 1, 1987), 4161-
4166 and 4201-4218 (Repealed as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984, as to 
offenses committed after that date), 5031-5042; 28 U.S.C. 509 and 
510; U.S. Const., Art. II, Sec. 2; 28 CFR 1.1-1.10; D.C. Official 
Code 24-101, 24-461 through 24-468.

Subpart G--Reduction in Sentence in Extraordinary and Compelling 
Circumstances

0
2. Revise the heading of subpart G to read as set forth above.
0
3. In Sec.  571.60, remove the phrase ``particularly extraordinary or 
compelling'' in the last sentence and add in its place the phrase 
``extraordinary and compelling'', remove the phrase ``which could not 
reasonably have been foreseen by the court at the time of sentencing'', 
redesignate the text as paragraph (a), and add a new paragraph (b), to 
read as follows:


Sec.  571.60  Purpose and scope.

* * * * *
    (b) The Bureau may request the sentencing court to suspend a 
sentence on the basis of medical or geriatric conditions on behalf of 
offenders in its custody who were sentenced pursuant to the D.C. Code 
and who are eligible under D.C. Code Sec. Sec.  24-467 and 24-468. The 
Bureau may submit an application and accompanying documentation to the 
United States Parole Commission for medical or geriatric parole on 
behalf of offenders in its custody who were sentenced pursuant to the 
D.C. Code and who are eligible under D.C. Code Sec. Sec.  24-461 to 24-
465 and 24-467. The Bureau will not entertain requests from offenders 
sentenced pursuant to the D.C. Code that the Bureau file motions under 
18 U.S.C. 4205(g) or 3582(c)(1)(A).
0
4. In Sec.  571.61, revise the heading, revise the third sentence of 
paragraph (a), and remove the phrase ``extraordinary or compelling'' in 
paragraph (a)(1) and add in its place ``extraordinary and compelling'', 
and revise the second sentence of paragraph (b). The revisions read as 
follows:


Sec.  571.61  Initiation of request--extraordinary and compelling 
circumstances.

    (a) * * * An inmate may initiate a request for consideration under 
18 U.S.C. 4205(g) or 3582(c)(1)(A) only when there are extraordinary 
and compelling circumstances. * * *
* * * * *
    (b) * * * Staff shall refer a request received at the Central 
Office or at a Regional Office to the Warden of the

[[Page 36488]]

Institution where the inmate is confined.
0
5. In Sec.  571.62, revise paragraph (a), paragraph (a)(2), and the 
second sentence of paragraph (b), to read as follows:


Sec.  571.62  Approval of request.

    (a) The Bureau of Prisons makes a motion under 18 U.S.C. 4205(g) or 
3582(c)(1)(A) only after review of the request by the Warden, the 
Office of General Counsel, and either the Medical Director (or Acting 
Medical Director) for medical referrals or the Assistant Director (or 
Acting Assistant Director), Correctional Programs Division for non-
medical referrals, and with the approval of the Director, Bureau of 
Prisons.
* * * * *
    (2) After obtaining the opinion of either the Medical Director (or 
Acting Medical Director) or the Assistant Director (or Acting Assistant 
Director), Correctional Programs Division, the Office of General 
Counsel will determine if the request warrants approval. The Office of 
General Counsel will solicit the opinion of the United States Attorney 
in the district in which the inmate was sentenced. With these opinions, 
the Office of General Counsel shall forward the entire matter to the 
Director, Bureau of Prisons, for final decision, subject to the general 
supervision and direction of the Attorney General and Deputy Attorney 
General.
* * * * *
    (b) * * * Upon receipt of notice that the sentencing court has 
entered an order granting the motion under 18 U.S.C. 3582(c)(1)(A), the 
Warden of the institution where the inmate is confined shall release 
the inmate either forthwith or as soon as his medical condition permits 
and transportation can be arranged.
* * * * *
0
6. Revise Sec.  571.63(b) and (d), to read as follows:


Sec.  571.63  Denial of request.

* * * * *
    (b) When an inmate's request is denied by the Office of General 
Counsel or the Director, the inmate will receive a written notice and a 
statement of reasons for the denial. This denial constitutes a final 
administrative decision.
* * * * *
    (d) Because a denial by the Office of General Counsel or Director, 
Bureau of Prisons, constitutes a final administrative decision, an 
inmate may not appeal the denial through the Administrative Remedy 
Procedure.
0
7. Revise Sec.  571.64, to read as follows:


Sec.  571.64  Ineligible offenders.

    The Bureau of Prisons has no authority to initiate a request under 
18 U.S.C. 4205(g) or 3582(c)(1)(A) on behalf of--
    (a) A state prisoner housed in a Bureau facility;
    (b) A federal offender, serving a non-parolable sentence, who 
committed his or her offense before November 1, 1987; or
    (c) A military prisoner housed in a Bureau facility.

PART 572--PAROLE

0
8. The authority citation for part 572 continues to read as follows:

    Authority:  5 U.S.C. 301; 18 U.S.C. 4001, 4042, 4081, 4082 
(Repealed in part as to offenses committed on or after November 1, 
1987), 4205, 5015 (Repealed October 12, 1984 as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-
0.99.

Subpart E--Reduction In Sentence (Procedures for the Implementation 
of 18 U.S.C. 4205(g))

0
9. Revise the heading of Subpart E to read as set forth above.
0
10. Revise Sec.  572.40 to read as follows:


Sec.  572.40  Reduction in sentence under 18 U.S.C. 4205(g).

    18 U.S.C. 4205(g) was repealed effective November 1, 1987, but 
remains the controlling law for inmates whose offenses occurred prior 
to that date. For inmates whose offenses occurred on or after November 
1, 1987, the applicable statute is 18 U.S.C. 3582(c)(1)(A). Procedures 
for reduction of sentence of an inmate under either provision are 
contained in 28 CFR part 571, subpart G.

[FR Doc. 2016-13294 Filed 6-6-16; 8:45 am]
 BILLING CODE P