[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Rules and Regulations]
[Pages 1516-1519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-281]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 570
[BOP Docket No. 1144-F]
RIN 1120-AB44
Inmate Furloughs
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises its
federal regulations on the inmate furlough program primarily to more
clearly provide for and define transfer furloughs. Also, under this
rule, the Bureau is expanding the authority of its Wardens to consider
all inmates potentially eligible for non-transfer furloughs, as opposed
to the current rule, which limits consideration to inmates with
community custody status.
DATES: This rule is effective on February 10, 2011.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION: The Bureau revises its federal regulations
on the inmate furlough program primarily to more clearly provide for
and define transfer furloughs. Through this change, we also seek to
reorganize and clarify the rules, while eliminating language that
constitutes agency guidance to staff. Any such guidance language will
be retained in the relevant Bureau policy. Also, under this rule, the
Bureau is expanding the authority of its Wardens to consider all
inmates potentially eligible for non-transfer furloughs, as opposed to
the current rule, which limits consideration to inmates with community
custody status.
A proposed rule on this subject was published on December 6, 2006
(71 FR 70696). We received three comments, which we respond to below.
Payment for Urinalysis, Breathalyzer, and Other Comparable Tests Upon
Return From Furlough
Section 570.38(b)(4) of the proposed rule stated that a furlough
will only be approved if an inmate agrees to certain conditions,
including the condition that the inmate may ``be thoroughly searched
and given a urinalysis, breathalyzer, and other comparable test, during
the furlough or upon return to the institution, and must prepay the
cost of such test(s) if the inmate or family members are paying the
other costs of the furlough.'' Further, this regulation provides that
the inmate ``must pre-authorize all testing fee(s) to be withdrawn
directly from his/her inmate deposit fund account.''
One commenter questioned the payment process described in Sec.
570.38. The commenter suggested that the inmate should pay for all
potential testing before he/she be ``allowed to leave.'' This is not
practical. Depending on Bureau resources, the inmate's particular
situation, and the particular circumstances surrounding the furlough,
it is possible that the inmate will not undergo all of the available
testing upon the inmate's return from furlough. It is therefore
unnecessary and impractical to require an inmate to pre-pay the costs
of tests that he/she may not be required to undergo.
The commenter then suggested that ``charging an inmate that is on
an emergency non-transferral furlough is not reasonable before they be
allowed to leave. Postponing their payment until they return seems to
be more reasonable.'' The Bureau agrees with this statement, which is
why the regulation requires not that inmates pre-pay, but only that the
inmate sign a form pre-authorizing payment for testing that will be
conducted upon the inmate's return.
For clarity, we have modified that part of the regulation to state
that the inmate ``must pre-authorize the cost of such test(s) if the
inmate or family members are paying the other costs of the furlough.''
Conditions Under Which a Furlough May Be Granted
One commenter stated that the rule ``does not make clear that
inmates in Low, Medium, or High security institutions are categorically
ineligible for emergency or other non-transfer furloughs.''
However, according to the regulation as proposed, ``inmates in Low,
Medium, or High security institutions'' are not ``categorically
ineligible for emergency or other non-transfer furloughs,'' but instead
will be considered on a case-by-case basis, in accordance with these
regulations and in the Warden's discretion.
Sec. 570.36 specifies the conditions under which a non-transfer
furlough may be granted. This section contains a chart which clarifies
the eligibility requirements for non-transfer furloughs and describes
the types of non-transfer furloughs an inmate may be eligible for,
based on the inmate's length of confinement or time remaining on the
inmate's sentence. The chart has been revised in the final rule for
greater clarity and accuracy. This section also describes circumstances
under which Wardens will ordinarily deny non-transfer furloughs.
Under this rule, the Bureau is expanding the authority of its
Wardens to consider all inmates potentially eligible for non-transfer
furloughs, as opposed to the current rule, which limits consideration
to inmates with community custody status. Community custody, the lowest
custody level assigned to an inmate, affords the lowest level of
security and staff supervision. The Bureau believes this change is
justified by the potential prisoner re-entry and rehabilitative
benefits to be afforded by a non-transfer furlough. Further, any
resulting public safety concerns are adequately addressed by the
limitations contained within Sec. Sec. 570.35(b) and 570.36.
Further, Sec. 570.31 describes inmate eligibility for furloughs,
and states that sentenced inmates housed in Bureau facilities, pretrial
inmates housed in Bureau facilities, and sentenced inmates housed in
Bureau facilities and classified as central inmate monitoring cases may
be eligible for furloughs.
[[Page 1517]]
Inmates who are not eligible for furloughs through the Bureau include
sentenced inmates housed in contract facilities and inmates who are
U.S. Marshals prisoners housed in contract facilities.
It should be noted that revised Sec. 570.35(a) states that inmates
transferring to administrative, low, medium, or high security
facilities are generally not eligible for participation in the Bureau's
transfer furlough program. Inmates transferring to facilities with
these security designations are considered to pose a potential risk to
the community if granted a transfer furlough. An inmate's security
level is based on relevant factual information, such as the inmate's
current offense, sentence, criminal history, and institutional behavior
that requires additional security measures. Because of the potential
risk to public safety, inmates transferring to administrative, low,
medium, or high security facilities are not appropriate for
participation in the Bureau's transfer furlough program.
Guidance to Staff Is Needed
The third commenter recommended that ``further guidance be given to
the Warden or person making the decision so that there will be more
consistency in the granting of furloughs.''
Further guidance will be given to all staff regarding furloughs in
the corresponding Bureau policy on furloughs, which is a guidance
document for staff. The Bureau intends for the corresponding policy
guidance to promote consistency in the granting of furloughs.
For the aforementioned reasons, the Bureau finalizes, with minor
changes, the proposed rule published on December 6, 2006 (71 FR 70696).
Executive Order 12866
This rule falls within a category of actions that the Office of
Management and Budget (OMB) has determined not to constitute
``significant regulatory actions'' under section 3(f) of Executive
Order 12866 and, accordingly, it was not 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 provide a more accurate description of the inmate
furlough program. 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. 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 section 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 570
Prisoners.
Harley G. Lappin,
Director, Bureau of Prisons.
Accordingly, 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. The authority citation for 28 CFR part 570 continues 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 C to read as follows:
Subpart C--Furloughs
Sec.
570.30 Purpose.
570.31 Inmate eligibility for furloughs.
570.32 Types of furloughs.
570.33 Justification for furlough.
570.34 Expenses of furlough.
570.35 Transfer furlough eligibility requirements.
570.36 Non-transfer furlough eligibility requirements.
570.37 Procedures to apply for a furlough.
570.38 Conditions of Furlough.
Sec. 570.30 Purpose.
The purpose of this subpart is to describe the procedures governing
the furlough program of the Federal Bureau of Prisons (Bureau), which
is authorized by 18 U.S.C. 3622. Under the furlough program, the Bureau
allows inmates who meet certain requirements to be temporarily released
from custody under carefully prescribed conditions.
Sec. 570.31 Inmate eligibility for furloughs.
(a) Eligible inmates. The following types of inmates may be
eligible for furloughs:
(1) Sentenced inmates housed in Bureau facilities.
(2) Pretrial inmates housed in Bureau facilities (provided that
they comply with the requirements of 28 CFR part 551, Subpart J).
(3) Sentenced inmates housed in Bureau facilities and classified as
central inmate monitoring cases (provided that they comply with the
requirements of 28 CFR part 524, Subpart F).
(b) Ineligible inmates. The following types of inmates are not
eligible for furloughs:
(1) Sentenced inmates housed in contract facilities are not
eligible to participate in the Bureau's furlough program under these
rules, but may apply for furloughs as specified in that facility's
written agreement with the Bureau.
(2) Inmates who are U.S. Marshals prisoners housed in contract
facilities are not eligible to participate, but must
[[Page 1518]]
direct any furlough requests to the U.S. Marshals.
Sec. 570.32 Types of furloughs.
A furlough is an authorized absence from an institution by an
inmate who is not under escort of a staff member, U.S. Marshal, or
state or federal agents. The two types of furloughs are:
(a) Transfer furlough--A furlough for the purpose of transferring
an inmate from one Bureau facility to another, a non-federal facility,
or community confinement (including home confinement) as noted below at
Sec. 570.33(a).
(b) Non-transfer furlough--A furlough for any purpose other than a
transfer furlough, and which may be defined based on its nature, as
either emergency or routine, as follows:
(1) Emergency furlough--A furlough allowing an inmate to address a
family crisis or other urgent situation as noted below at Sec.
570.33(b).
(2) Routine furlough--A furlough for any of the reasons noted below
at Sec. 570.33 (a) and (c) through (j).
(c) Duration and distance of non-transfer furlough--
(1) Day furlough--A furlough within the geographic limits of the
commuting area of the institution, which lasts 16 hours or less and
ends before midnight.
(2) Overnight furlough--A furlough which falls outside the criteria
of a day furlough.
Sec. 570.33 Justification for furlough.
The Warden or designee may authorize a furlough, for 30 calendar
days or less, for an inmate to:
(a) Transfer directly to another Bureau institution, a non-federal
facility, or community confinement;
(b) Be present during a crisis in the immediate family, or in other
urgent situations;
(c) Participate in the development of release plans;
(d) Establish or reestablish family and community ties;
(e) Participate in selected educational, social, civic, and
religious activities which will facilitate release transition;
(f) Appear in court in connection with a civil action;
(g) Comply with an official request to appear before a grand jury,
or to comply with a request from a legislative body, or regulatory or
licensing agency;
(h) Appear in or prepare for a criminal court proceeding, but only
when the use of a furlough is requested or recommended by the
applicable court or prosecuting attorney;
(i) Participate in special training courses or in institution work
assignments, including Federal Prison Industries (FPI) work
assignments, when daily commuting from the institution is not feasible;
or
(j) Receive necessary medical, surgical, psychiatric, or dental
treatment not otherwise available.
Sec. 570.34 Expenses of furlough.
All expenses of a furlough, including transportation, food,
lodging, and incidentals, are the responsibility of the inmate, the
inmate's family, or other appropriate source approved by the Warden,
except that the government may bear the expense of a furlough if it is
for the government's primary benefit.
Sec. 570.35 Transfer furlough eligibility requirements.
(a) Inmates transferring to administrative, low, medium, or high
security facilities are generally not eligible for participation in the
Bureau's transfer furlough program.
(b) For a transfer furlough, inmates other than those described in
paragraph (a) of this section must:
(1) Be physically and mentally capable of completing the furlough;
and
(2) Demonstrate sufficient responsibility to provide reasonable
assurance that furlough requirements will be met.
(c) Inmates transferring to minimum security facilities must meet
the requirements described in paragraph (b) of this section, and must
also be:
(1) Transferring from a low or minimum security facility; and
(2) Appropriate for placement in a minimum security facility based
on the inmate's security designation and custody classification at the
time of transfer.
(d) Inmates transferring to community confinement must meet the
requirements described in paragraph (b) of this section, and must also
be appropriate for placement in community confinement based on the
inmate's security designation and custody classification at the time of
transfer.
Sec. 570.36 Non-transfer furlough eligibility requirements.
(a) An inmate may be eligible for a non-transfer furlough if the
inmate meets the criteria described in 570.35(b) and the following
additional criteria:
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Then the inmate may only be
If an inmate has . . . considered for . . .
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been confined at the initially an emergency furlough.
designated institution for less than
90 days.
more than two years remaining until the an emergency furlough.
projected release date.
2 years or less remaining until the an emergency furlough or a
projected release date. routine day furlough.
18 months or less remaining until the an emergency furlough, a
projected release date. routine day furlough, or a
routine overnight furlough
within the institution's
commuting area.
1 year or less remaining until the an emergency furlough, a
projected release date. routine day furlough, or a
routine overnight furlough
either within or outside the
institution's commuting area.
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(b) Ordinarily, Wardens will not grant a furlough to an inmate if:
(1) The inmate is convicted of a serious crime against a person;
(2) The inmate's presence in the community could attract undue
public attention, create unusual concern, or diminish the seriousness
of the offense; or
(3) The inmate has been granted a furlough in the past 90 days.
Sec. 570.37 Procedures to apply for a furlough.
(a) Application. Inmates may submit a furlough application to
staff, who will review it for compliance with these regulations and
Bureau policy.
(b) Notification of decision. An inmate will be notified of the
Warden's decision on the furlough application. Where a furlough
application is denied, the inmate will be notified of the reasons for
the denial.
(c) Appeal. An inmate may appeal any aspect of the furlough program
through the Administrative Remedy Program, 28 CFR Part 542, Subpart B.
Sec. 570.38 Conditions of Furlough.
(a) An inmate who violates the conditions of a furlough may be
considered an escapee under 18 U.S.C. 4082 or 18 U.S.C. 751, and may be
subject to criminal prosecution and institution disciplinary action.
[[Page 1519]]
(b) A furlough will only be approved if an inmate agrees to the
following conditions and understands that, while on furlough, he/she:
(1) Remains in the legal custody of the U.S. Attorney General, in
service of a term of imprisonment;
(2) Is subject to prosecution for escape if he/she fails to return
to the institution at the designated time;
(3) Is subject to institution disciplinary action, arrest, and
criminal prosecution for violating any condition(s) of the furlough;
(4) May be thoroughly searched and given a urinalysis,
breathalyzer, and other comparable test, during the furlough or upon
return to the institution, and must pre-authorize the cost of such
test(s) if the inmate or family members are paying the other costs of
the furlough. The inmate must pre-authorize all testing fee(s) to be
withdrawn directly from his/her inmate deposit fund account;
(5) Must contact the institution (or United States Probation
Officer) in the event of arrest, or any other serious difficulty or
illness; and
(6) Must comply with any other special instructions given by the
institution.
(c) While on furlough, the inmate must not:
(1) Violate the laws of any jurisdiction (federal, state, or
local);
(2) Leave the area of his/her furlough without permission, except
for traveling to the furlough destination, and returning to the
institution;
(3) Purchase, sell, possess, use, consume, or administer any
narcotic drugs, marijuana, alcohol, or intoxicants in any form, or
frequent any place where such articles are unlawfully sold, dispensed,
used, or given away;
(4) Use medication that is not prescribed and given to the inmate
by the institution medical department or a licensed physician;
(5) Have any medical/dental/surgical/psychiatric treatment without
staff's written permission, unless there is an emergency. Upon return
to the institution, the inmate must notify institution staff if he/she
received any prescribed medication or treatment in the community for an
emergency;
(6) Possess any firearm or other dangerous weapon;
(7) Get married, sign any legal papers, contracts, loan
applications, or conduct any business without staff's written
permission;
(8) Associate with persons having a criminal record or with persons
who the inmate knows to be engaged in illegal activities without
staff's written permission;
(9) Drive a motor vehicle without staff's written permission, which
can only be obtained if the inmate has proof of a currently valid
driver's license and proof of appropriate insurance; or
(10) Return from furlough with anything the inmate did not take out
with him/her (for example, clothing, jewelry, or books).
[FR Doc. 2011-281 Filed 1-10-11; 8:45 am]
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