[Federal Register Volume 70, Number 212 (Thursday, November 3, 2005)]
[Rules and Regulations]
[Pages 66752-66754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21969]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 523

[BOP-1112-F]
RIN 1120-AB12


Good Conduct Time: Aliens With Confirmed Orders of Deportation, 
Exclusion, or Removal

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) amends its 
rules on Good Conduct Time (GCT). The purpose of this rule is to more 
effectively reduce the lengthy General Educational Development (GED) 
waiting lists and to reevaluate the ``satisfactory progress in a 
literacy program'' provision of the Violent Crime Control and Law 
Enforcement Act of 1994 (VCCLEA) and/or the Prison Litigation Reform 
Act of 1995 (PLRA) for aliens with confirmed orders of deportation, 
exclusion, or removal. This rule will increase the proportion of our 
literacy funds and resources that go to inmates who will remain in the 
U.S. after release. This rule will exempt inmate aliens with confirmed 
orders of deportation, exclusion, or removal from the ``satisfactory 
progress in a literacy program'' provision of the Violent Crime Control 
and Law Enforcement Act of 1994 (VCCLEA) and/or the Prison Litigation 
Reform Act of 1995 (PLRA). The Bureau's Literacy Program rules formerly 
comprised only GED attainment. This means that inmate aliens who have 
confirmed orders of deportation, exclusion, or removal, but do not have 
a high school diploma or GED, will not need to demonstrate satisfactory 
progress toward earning a GED credential to be considered for the full 
benefits of GCT. When considering GCT, we will allow 54 days GCT for 
each year served if the inmate is an alien with a confirmed order of 
deportation, exclusion, or removal from the Executive Office for 
Immigration Review (EOIR).
    In this document, we also reorganize the rule for clarity and 
accuracy. Other than the substantive change regarding sentenced 
deportable aliens, we make no further substantive changes.

DATES: This rule is effective December 5, 2005.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: We published this change as a proposed rule 
on June 25, 2003 (68 FR 37776).

What Is the Purpose of This Rule Change?

    The purpose of this rule is to more effectively reduce the lengthy 
General Educational Development (GED) waiting lists and to reevaluate 
the ``satisfactory progress in a literacy program'' provision of 
VCCLEA/PLRA for aliens with confirmed orders of deportation, exclusion, 
or removal. This rule will increase the proportion of our literacy 
funds and resources that go to inmates who will remain in the U.S. 
after release.
    VCCLEA/PLRA requires that inmates lacking a high school diploma or 
GED

[[Page 66753]]

must participate satisfactorily in the literacy program to receive full 
benefits of GCT.
    In November 1997, the Bureau's education staff implemented the 
literacy provision of VCCLEA and PLRA (see 28 CFR 544.70-544.75). 
Inmates sentenced under either of these two laws must enroll or re-
enroll in a literacy program and make satisfactory progress towards 
earning a GED credential. If they do not do this, inmates may suffer 
negative consequences to their GCT credit. For PLRA inmates, this would 
mean not being eligible for the maximum, 54 days, of GCT (see 28 CFR 
523.20(a)(1)). For VCCLEA inmates, this would result in their GCT not 
vesting.
    Although we made extensive efforts to enroll as many inmates in 
literacy programs as possible, the waiting lists for enrollment in 
these programs grew from no appreciable waitlist in August 1997 to 
12,829 in January 2004. Aliens with confirmed deportation orders 
represent a small fraction of all VCCLEA/PLRA sentenced inmates without 
a verified GED. On January 7, 2004, six percent of all VCCLEA/PLRA 
sentenced inmates without a verified GED were aliens with confirmed 
deportation orders (2,383 out of 41,892).
    18 U.S.C. 3624(b)(4) gives the Director authority to make 
exemptions to the GED requirements as he deems appropriate. Through our 
literacy program, we help inmates compete for available jobs and cope 
with post-release community, family, and other responsibilities. 
Because we must concentrate resources on inmates who will be released 
into U.S. communities, we will not require inmates with confirmed 
orders of deportation, exclusion, or removal to participate in the 
literacy program.
    In this rule, we make an exemption to the GED requirements to 
provide relief to the growing demand for literacy programs by amending 
28 CFR 523.20 to allow the full benefit of GCT provisions for aliens 
with confirmed orders of deportation, exclusion, or removal. These 
inmates may still participate in the literacy program, even though it 
will not affect their GCT.

Comments

    We received eight comments. Six were identical form letters in 
support of the rule change. We respond to the remaining two comments 
below.
    One commenter recommended that the Director provide an exemption 
for any inmate currently subject to a detainer for later determination 
of deportability. The commenter states that this would allow inmates 
who know that they will be found deportable to request the exemption, 
thus freeing space in the GED program for inmates who will be released 
within the U.S.
    We considered this option and decided against creating an exemption 
for inmates subject to a detainer pending a hearing to determine 
deportability. If the Bureau of Prisons allows such an exception for 
inmates with detainers, but the Department of Homeland Security (DHS), 
Bureau of Immigration and Customs Enforcement (ICE) determines that the 
inmate cannot be removed to the country of origin, there are two 
possible consequences for that inmate: (1) The inmate may have to be on 
a GED waiting list for an indeterminate amount of time, possibly not 
getting into the program until close to the expiration of his/her 
sentence; and/or (2) Any good conduct time earned by the inmate under 
the exception would have to be forfeited to the extent that it exceeded 
the good conduct time that inmate would have earned had his/her 
immigration status been known earlier.
    In both situations, the inmate faces potentially negative 
consequences. We determined that it would more likely benefit alien 
inmates in this situation to accumulate good conduct time and move up 
in the waitlist or possibly even have the opportunity to benefit from 
the GED program, while his/her hearing is pending.
    Another commenter wanted to know how the rule would affect inmates 
who are of Cuban citizenship, whose removal from the U.S. cannot be 
executed, and who, therefore, will be released into the community. We 
intend this rule to operate as follows: Any inmate who is subject to an 
EOIR order of removal, deportation, or exclusion does not need to 
participate in the GED program to earn the full amount of good conduct 
time. Therefore, regardless of whether or not that order can actually 
be executed, the fact of the EOIR order triggers the effect of this 
rule. However, if DHS re-evaluates the inmate's situation and makes a 
formal determination that the inmate is no longer subject to an order 
of removal, deportation, or exclusion, that inmate will then be 
required to participate in the GED program or be placed on the waitlist 
to earn the full amount of good conduct time.
    For the aforementioned reasons, we finalize the proposed rule 
without change.

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 of the Bureau of Prisons 
has determined that this rule is not a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), and accordingly 
this rule has not 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. Under Executive Order 13132, this rule 
does not have sufficient federalism implications for which we would 
prepare 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. By 
approving it, the Director certifies that it will not have a 
significant economic impact upon a substantial number of small entities 
because: This rule is about 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 cause State, local and tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not significantly or uniquely affect small governments. We do 
not need to take action under the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1995

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1995. This rule will 
not result in an annual effect on the economy of $1000,000,000 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-b ased companies to compete with foreign-
based companies in domestic and export markets.

List of Subjects in 28 CFR Part 523

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.


0
Under the rulemaking authority vested in the Attorney General in 5

[[Page 66754]]

U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
amend 28 CFR part 523 as follows.

Subchapter B--Inmate Admission, Classification, and Transfer

PART 523--COMPUTATION OF SENTENCE

0
1. The authority citation for 28 CFR part 523 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3568 (repealed November 1, 
1987 as to offenses committed on or after that date), 3621, 3622, 
3624, 4001, 4042, 4081, 4082 (Repealed in part as to conduct 
occurring on or after November 1, 1987), 4161-4166 (repealed October 
12, 1984 as to offenses committed on or after November 1, 1987), 
5006-5024 (Repealed October 12, 1984 as to conduct occurring after 
that date), 5039; 28 U.S.C. 509, 510.

0
2. Revise Sec.  523.20 to read as follows:


Sec.  523.20  Good conduct time.

    (a) For inmates serving a sentence for offenses committed on or 
after November 1, 1987, but before September 13, 1994, the Bureau will 
award 54 days credit toward service of sentence (good conduct time 
credit) for each year served. This amount is prorated when the time 
served by the inmate for the sentence during the year is less than a 
full year.
    (b) For inmates serving a sentence for offenses committed on or 
after September 13, 1994, but before April 26, 1996, all yearly awards 
of good conduct time will vest for inmates who have earned, or are 
making satisfactory progress (see Sec.  544.73(b) of this chapter) 
toward earning a General Educational Development (GED) credential.
    (c) For inmates serving a sentence for an offense committed on or 
after April 26, 1996, the Bureau will award
    (1) 54 days credit for each year served (prorated when the time 
served by the inmate for the sentence during the year is less than a 
full year) if the inmate has earned or is making satisfactory progress 
toward earning a GED credential or high school diploma; or
    (2) 42 days credit for each year served (prorated when the time 
served by the inmate for the sentence during the year is less than a 
full year) if the inmate has not earned or is not making satisfactory 
progress toward earning a GED credential or high school diploma.
    (d) Notwithstanding the requirements of paragraphs (b) and (c) of 
this section, an alien who is subject to a final order of removal, 
deportation, or exclusion is eligible for, but is not required to, 
participate in a literacy program, or to be making satisfactory 
progress toward earning a General Educational Development (GED) 
credential, to be eligible for a yearly award of good conduct time.
    (e) The amount of good conduct time awarded for the year is also 
subject to disciplinary disallowance (see tables 3 through 6 in Sec.  
541.13 of this chapter).

[FR Doc. 05-21969 Filed 11-2-05; 8:45 am]
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