[Federal Register Volume 71, Number 212 (Thursday, November 2, 2006)]
[Proposed Rules]
[Pages 64507-64508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18439]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 550

[Docket No. BOP-1139-P]
RIN 1120-AB41


Drug Abuse Treatment Program: Eligibility of D.C. Code Offenders 
for Early Release Consideration

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
extend early release consideration to D.C. Code offenders pursuant to 
D.C. Code Sec.  24-403.01.

DATES: Comments due by January 2, 2007.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: On July 1, 2004 (69 FR 39887), we published 
a proposed rule revising all the regulations on the Drug Abuse 
Treatment Program in 28 CFR part 550, subpart F (2004 proposed rule). 
We now propose to revise 28 CFR 550.55(a) of the 2004 proposed rule to 
extend early release consideration to D.C. Code offenders pursuant to 
D.C. Code Sec.  24-403.01.
    The 2004 proposed rule, Sec.  550.55(a), stated that inmates may be 
eligible for early release by a period not to exceed 12 months if they 
were sentenced to a term of imprisonment under 18 U.S.C. Chapter 227, 
Subchapter D for a nonviolent offense and successfully complete a 
residential drug abuse treatment program, as described in Sec.  550.53, 
during their current commitment.
    We now propose to modify Sec.  550.55(a) from the 2004 proposed 
rule to state that inmates may be eligible for early release by a 
period not to exceed 12 months if they were sentenced to a term of 
imprisonment under either 18 U.S.C. Chapter 227, Subchapter D for a 
nonviolent offense; or D.C. Code Sec.  24-403.01 for a nonviolent 
offense, meaning an offense other than those in D.C. Code Sec.  23-
1331(4). There has been no change to the provision in the 2004 rule 
stating that in addition to the above criteria, inmates must 
successfully complete a residential drug abuse treatment program, as 
described in Sec.  550.53, during their current commitment.

Statutory Authority

    The Residential Drug Abuse Program (RDAP) is available to all 
eligible inmates pursuant to Title 18 U.S.C. 3621(b) and (e). Section 
3621(b) generally obligates the Bureau to provide ``substance abuse 
treatment for each prisoner the Bureau determines has a treatable 
condition of addiction or abuse.'' Section 3621(e)(1) states that the 
Bureau ``shall, subject to the availability of appropriations, provide 
residential substance abuse treatment * * * for all eligible 
prisoners.''
    Further, under Sec.  3621(e)(2)(B), the period a prisoner convicted 
of a nonviolent offense remains in custody after successfully 
completing a treatment program may be reduced by the Bureau of Prisons, 
but such reduction may not be more than one year from the term the 
prisoner must otherwise serve.

Early Release Regulation

    In 1995, the Bureau published a regulation to implement the early 
release incentive which defined the term ``crime of violence'' and 
provided a framework for Bureau employees to make early release 
determinations. See 60 FR 27692 (May 25, 1995) (previously codified at 
28 CFR 550.58). Instructive policy was issued in Program Statement 
5162.02, Definition of Term, ``Crimes of Violence.'' In the regulation 
and policy, the Bureau defined the term ``crime of violence'' pursuant 
to 18 U.S.C. 924(c)(3). Subsequently, there was a split among Circuit 
Courts regarding the validity of this approach. The split prompted the 
Bureau to revise the regulation in 1997 to explicitly rely upon the 
discretion allotted to the Director of the Bureau to grant a sentence 
reduction. See 62 FR 53690 (Oct. 15, 1997) (codified at 28 CFR 
550.58(a), currently in 550.55). The revised regulation was designed to 
achieve consistent administration of the early release incentive and to 
clearly demonstrate that the Bureau now relied upon the discretion of 
the Director to determine eligibility for certain program benefits.
    The revised regulation and policy resulted in another split among 
the Circuit Courts which was resolved by the Supreme Court's decision 
in Lopez v. Davis, 531 U.S. 230 (2001). In Lopez, the Supreme Court 
held that the revised regulation found at 28 CFR 550.58 (currently in 
Sec.  550.55) is a permissible exercise of the Bureau's discretion 
under Sec.  3621(e)(2)(B) for assessing program benefit eligibility.

D.C. Code Offenders--Eligibility for Early Release

    The Bureau initially codified its rules regarding its Drug Abuse 
Treatment Programs on January 7, 1994. Subsequently, on May 25, 1995, 
the Bureau amended its rules on Drug Abuse Treatment Programs to allow 
for the consideration of early release of eligible inmates who 
successfully completed the RDAP. Excluded from this category of 
eligible inmates were inmates in Bureau custody not serving a sentence 
for a federal offense (e.g., D.C. Code offenders, contractual borders, 
INS detainees, and pretrial inmates).
    However, D.C. Code Sec.  24-403.01(d-1), amended on May 24, 2005, 
states that D.C. Code offenders sentenced under D.C. Code Sec.  24-
403.01 for a nonviolent offense are eligible for early release 
consideration in accordance with 18 U.S.C. 3621(e)(2). Accordingly, the 
Director now extends early release eligibility pursuant to 18 U.S.C. 
3621(e)(2) to D.C. Code offenders for successful completion of the 
RDAP.
    Eligibility for early release for D.C. Code offenders participating 
in the Residential Drug Abuse Program (RDAP) requires a determination 
that the inmate has not committed a crime of violence as defined by 
D.C. Code Sec.  23-1331(4).
    The National Capital Revitalization and Self-Government Improvement 
Act of 1997, approved August 5, 1997, (Pub. L. 105-33; 111 Stat. 740) 
(``Revitalization Act'') dictates that D.C. Code felony offenders 
``shall be subject to any law or regulation applicable to persons 
committed for violations of laws of the United States consistent with 
the sentence imposed, and the Bureau of Prisons shall be responsible 
for the custody, care, subsistence, education, treatment and training 
of such persons.'' D.C. Code Sec.  24-101(b). Therefore, as with 
federal offenders, it is also within the Director's discretion, as 
provided by 18 U.S.C. 3621(e), to determine D.C. Code offenders' 
eligibility for early release according to the same criteria used for 
federal offenders. This criteria, which appears in current Sec.  
550.58, gives the following

[[Page 64508]]

list of inmates not eligible for early release:
    (1) Immigration and Customs Enforcement detainees;
    (2) Pretrial inmates;
    (3) Contractual boarders (for example, State, or military inmates);
    (4) Inmates who have a prior felony or misdemeanor conviction for:
    (i) homicide (including deaths caused by recklessness, but not 
including deaths caused by negligence or justifiable homicide),
    (ii) forcible rape,
    (iii) robbery,
    (iv) aggravated assault,
    (v) arson,
    (vi) kidnaping; or
    (vii) an offense that by its nature or conduct involves sexual 
abuse offenses committed upon minors;
    (5) Inmates who have a current felony conviction for:
    (i) an offense that has as an element, the actual, attempted, or 
threatened use of physical force against the person or property of 
another,
    (ii) an offense that involved the carrying, possession, or use of a 
firearm or other dangerous weapon or explosives (including any 
explosive material or explosive device),
    (iii) an offense that by its nature or conduct, presents a serious 
potential risk of physical force against the person or property of 
another; or
    (iv) an offense that by its nature or conduct involves sexual abuse 
offenses committed upon minors;
    (6) Inmates who have been convicted of an attempt, conspiracy, or 
other offense which involved an underlying offense to commit any 
offense listed in paragraph (4) and/or (5); or
    (7) Inmates who previously received an early release under 18 
U.S.C. 3621(e).
    Title 18 U.S.C. 3621(e)(2)(B) establishes two prerequisites for 
early release consideration:
    (1) Conviction of a nonviolent offense and
    (2) successful completion of drug treatment. If those prerequisites 
are met, the Bureau may grant early release.
    Thus, because of the Revitalization Act, the explicit intention of 
the D.C. Government stated in D.C. Code Sec.  24-403.01, the statutory 
language of Sec.  3621, the Bureau's regulations, and the Bureau's 
clearly established use of discretion as held in Lopez, the Bureau can 
consider D.C. Code offenders for RDAP early release as it does for 
Federal offenders.

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 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.
    In particular, 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. Clarifying and streamlining this rule and eliminating 
unnecessary text and obsolete language will have the benefit of easier 
readability and improved understanding of our drug treatment programs. 
We strengthen the program by calculated revisions designed to allow 
inmates to succeed in drug treatment while avoiding expending resources 
unnecessarily.

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 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 550

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.
    Under the 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 part 550 as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 550--DRUG PROGRAMS

    1. The authority citation for part 550 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 
4001, 4042, 4046, 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; 21 U.S.C. 
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 
U.S.C. Chapter 223).

Subpart F--Drug Abuse Treatment Program

    2. Revise Sec.  550.55 (a)(1) as follows:


Sec.  550.55  Eligibility for early release.

    (a) Eligibility. Inmates may be eligible for early release by a 
period not to exceed 12 months if they:
    (1) were sentenced to a term of imprisonment under either:
    (i) 18 U.S.C. Chapter 227, Subchapter D for a nonviolent offense; 
or
    (ii) D.C. Code Sec.  24-403.01 for a nonviolent offense, meaning an 
offense other than those in D.C. Code Sec.  23-1331(4); and
* * * * *
 [FR Doc. E6-18439 Filed 11-1-06; 8:45 am]
BILLING CODE 4410-05-P