[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Proposed Rules]
[Pages 58197-58199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23684]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 570

[BOP Docket No. 1151]
RIN 1120-AB61


Pre-Release Community Confinement

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) responds to 
recent litigation surrounding the pre-release community confinement 
regulation which it published on October 21, 2008 by publishing a 
proposed rule on this subject.

DATES: Comments are due by November 21, 2011.

ADDRESSES: Submit comments to the Rules Unit, Office of General 
Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 
20534. You may view an electronic version of this rule at http://www.regulations.gov. You may also comment via the Internet to the 
Bureau at [email protected] or by using the http://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 available for public inspection online at http://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 
http://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.

The Proposed Rule

    In this document, the Bureau of Prisons (Bureau) responds to recent 
litigation surrounding the pre-release community confinement regulation 
which it published on October 21, 2008 (73 FR 62443) (2008 regulations) 
by publishing a proposed rule on this subject.
    The interim rule published in 2008 revised the Bureau's regulations 
on pre-release community confinement in 28 CFR part 570, subpart B, to 
conform with the requirements of the Second Chance Act of 2007, 
approved April 9th, 2008 (Pub. L. 110-199; 122 Stat. 657) (``Second 
Chance Act'').
    In an opinion filed on June 16, 2010, the District Court for the 
District of Oregon upheld Bureau policies issued following the Second 
Chance Act, finding that they are ``internal agency guidelines which do 
not trigger the procedural requirements of 5 U.S.C. Sec.  553,'' but 
invalidated the 2008 interim rule on the grounds that the Bureau did 
not ``establish good cause to forego advance notice and comment'' under 
the Administrative Procedure Act (5 U.S.C. 552, et seq.). Sacora v. 
Thomas, No. CV 08-578-MA (D. Or. June 16, 2010). The court enjoined the 
BOP ``from considering inmates for pre-release RRC [Residential Re-
entry Centers] placement pursuant to 28 CFR 570.20-22 until such time 
as regulations are promulgated in accordance with 5 U.S.C. 553(b).'' We 
now issue this proposed rule in order to comply with the court's 
determination. The proposed rule is identical to the 2008 interim rule, 
and we therefore reprint the rationale for the interim rule below as 
the rationale for this proposed rule.
    Prior to October 21, 2008, the community confinement regulations 
implemented the Bureau's categorical exercise of discretion for 
designating inmates to community confinement. The regulations stated 
that the Bureau would designate inmates to community confinement only 
as a condition of pre-release custody and programming, during the last 
ten percent of the prison sentence being served, for a period not 
exceeding six months, unless specific Bureau programs allow greater 
periods of community confinement.
    To conform these regulations to the language of the Second Chance 
Act, we made the following revisions:

Section 570.20 Purpose

    In this regulation, we describe the Bureau's procedures for 
designating inmates to pre-release community confinement or home 
detention. We also provide a new definition of the term ``community 
confinement.'' Section 231(f) of the Second Chance Act amended 18 
U.S.C. 3621 by adding a new subsection (g). New 18 U.S.C. 3621(g)(2) 
defines the term ``community confinement'' for purposes of that 
subsection by adopting the meaning ``given that term in the application 
notes under section 5F1.1 of the Federal Sentencing Guidelines Manual'' 
in effect on the date of enactment of the Act. On April 9, 2008, the 
application notes to United States Sentencing Guideline (USSG) Sec.  
5F1.1 read in pertinent part as follows:

    ``Community confinement'' means residence in a community 
treatment center, halfway house, restitution center, mental

[[Page 58198]]

health facility, alcohol or drug rehabilitation center, or other 
community facility; and participation in gainful employment, 
employment search efforts, community service, vocational training, 
treatment, educational programs, or similar facility-approved 
programs during non-residential hours.

    Although new subsection 18 U.S.C. 3621(g) relates on its face only 
to ``continued access to medical care,'' we adopt the definition of 
community confinement given in this provision for the purposes of 
subpart B as amended. The Second Chance Act itself variously uses the 
terms ``community confinement,'' ``community corrections agencies,'' 
``community corrections facilities,'' and ``community confinement 
facilities,'' but it does so in contexts that indicate that these terms 
are meant to refer to the concept of community confinement generally. 
We therefore adopt the definition in 18 U.S.C. 3621(g) for clarity and 
consistency, and to maintain uniformity in application of the Second 
Chance Act provisions, we adopt this definition of ``community 
confinement'' as applicable in the context of these regulations. For 
clarity, we also add a parenthetical that explains that the Bureau 
includes residential re-entry centers in the definition of ``community 
confinement.''
    In this section, we also add a definition of ``home detention.'' 
Section 231(g)(5)(B) of the Second Chance Act provides that ``[t]he 
term `home detention' has the same meaning given the term in the 
Federal Sentencing Guidelines as of the date of the enactment of this 
Act * * *.'' Once more, although this reference to the Federal 
Sentencing Guidelines is articulated in a different context, we deem it 
prudent to model our definition on that given by the Federal Sentencing 
Guidelines, as suggested by the Second Chance Act, for clarity and 
consistency in application.
    In this section, therefore, we include a definition of ``home 
detention'' which is derived from USSG 5F1.2. Specifically, we define 
``home detention'' as a program of confinement and supervision that 
restricts the defendant to his or her place of residence continuously, 
except for authorized absences, enforced by appropriate means of 
surveillance by the probation office or other monitoring authority. We 
add the phrase ``or other monitoring authority'' to the definition 
given by USSG 5F1.2 to allow for the possibility that the function of 
monitoring may be accomplished by other federal government agencies, 
employees, or contractors.

Section 570.21 Time-frames

    Section 251(a) of the Second Chance Act amends 18 U.S.C. 3624(c) to 
require that the Director must, ``to the extent practicable, ensure 
that a prisoner serving a term of imprisonment spends a portion of the 
final months of that term (not to exceed 12 months), under conditions 
that will afford that prisoner a reasonable opportunity to adjust to 
and prepare for the reentry of that prisoner into the community.'' 
Further, section 3624(c) is amended to state that ``[t]he authority 
under this subsection may be used to place a prisoner in home 
confinement for the shorter of 10 percent of the term of imprisonment 
of that prisoner or 6 months.''
    In this section, we therefore make the following changes to conform 
to the specific language in section 251(a) of the Second Chance Act: 
Paragraph (a) of the revised Sec.  570.21 states that inmates may be 
designated to community confinement as a condition of pre-release 
custody and programming during the final months of the inmate's term of 
imprisonment, not to exceed twelve months; and paragraph (b) of the 
revised Sec.  570.21 states that inmates may be designated to home 
detention as a condition of pre-release custody and programming during 
the final months of the inmate's term of imprisonment, not to exceed 
the shorter of ten percent of the term of the inmate's imprisonment or 
six months.

Section 570.22 Designation

    In this section, we inform inmates that they will be considered for 
pre-release community confinement in a manner consistent with 18 U.S.C. 
3621(b), determined on an individual basis, and of duration sufficient 
to optimize the likelihood of successful reintegration into the 
community. This section reflects the requirements of the Second Chance 
Act regarding the promulgation of these regulations. Section 251(a)(6) 
of the Second Chance Act requires the Bureau to implement regulations 
that ensure that placements in community confinement as a condition of 
pre-release custody are:
     Conducted in a manner consistent with 18 U.S.C. 3621(b);
     Determined on an individual basis; and
     Long enough ``to provide the greatest likelihood of 
successful reintegration into the community.'' Section 570.22 reflects 
the three factors listed above.
    With regard to the requirement that determinations regarding pre-
release community confinement are ``conducted in a manner consistent 
with 18 U.S.C. 3621(b),'' the Bureau will ensure that the following 
factors listed in section 3621(b) will be considered in making such 
determinations:
     The resources of the facility contemplated;
     The nature and circumstances of the offense;
     The history and characteristics of the prisoner;
     Any statement by the sentencing court concerning the 
purpose for which the sentence was imposed or recommending a specific 
type of institution; and
     Any pertinent policy statements issued by the United 
States Sentencing Commission.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined to constitute a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866 and, accordingly, it was 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 have the benefit of eliminating confusion in the 
courts that has been caused by the changes in the Bureau's statutory 
interpretation, while allowing us to continue to operate in compliance 
with the revised statute. 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.

[[Page 58199]]

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 570

    Prisoners.

Thomas R. Kane,
Acting Director, 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, we propose to revise 28 CFR part 570 as set forth below.

Subchapter D--Community Programs and Release

PART 570--COMMUNITY PROGRAMS

    1. Revise the authority citation for 28 CFR part 570 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.

    2. In part 570, subpart B is revised to read as follows:

Subpart B--Pre-Release Community Confinement

Sec.
570.20 Purpose.
570.21 Time-frames.
570.22 Designation.


Sec.  570.20  Purpose.

    The purpose of this subpart is to provide the procedures of the 
Bureau of Prisons (Bureau) for designating inmates to pre-release 
community confinement or home detention.
    (a) Community confinement is defined as residence in a community 
treatment center, halfway house, restitution center, mental health 
facility, alcohol or drug rehabilitation center, or other community 
correctional facility (including residential re-entry centers); and 
participation in gainful employment, employment search efforts, 
community service, vocational training, treatment, educational 
programs, or similar facility-approved programs during non-residential 
hours.
    (b) Home detention is defined as a program of confinement and 
supervision that restricts the defendant to his place of residence 
continuously, except for authorized absences, enforced by appropriate 
means of surveillance by the probation office or other monitoring 
authority.


Sec.  570.21  Time-frames.

    (a) Community confinement. Inmates may be designated to community 
confinement as a condition of pre-release custody and programming 
during the final months of the inmate's term of imprisonment, not to 
exceed twelve months.
    (b) Home detention. Inmates may be designated to home detention as 
a condition of pre-release custody and programming during the final 
months of the inmate's term of imprisonment, not to exceed the shorter 
of ten percent of the inmate's term of imprisonment or six months.
    (c) Exceeding time-frames. These time-frames may be exceeded when 
separate statutory authority allows greater periods of community 
confinement as a condition of pre-release custody.


Sec.  570.22  Designation.

    Inmates will be considered for pre-release community confinement in 
a manner consistent with 18 U.S.C. Section 3621(b), determined on an 
individual basis, and of sufficient duration to provide the greatest 
likelihood of successful reintegration into the community, within the 
time-frames set forth in this part.

[FR Doc. 2011-23684 Filed 9-19-11; 8:45 am]
BILLING CODE 4410-05-P