[Federal Register Volume 79, Number 1 (Thursday, January 2, 2014)]
[Proposed Rules]
[Pages 78-81]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31021]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 527

[BOP-1165-P]
RIN 1120-AB65


Transfer of Offenders to Foreign Countries

AGENCY: Bureau of Prisons, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
streamline its regulations on transferring offenders to foreign 
countries by eliminating language that constitutes agency guidance to 
staff. Guidance language will be retained in the relevant Bureau 
policy.

DATES: Comments due by March 3, 2014.

ADDRESSES: Comments should be submitted to the Rules Unit, Office of 
General Counsel, Bureau of Prisons, 320 First Street NW., Washington, 
DC 20534. You may also comment via the Internet to BOP at 
[email protected] or by using the 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 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 
has 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.

Proposed Rule

    In this document, the Bureau of Prisons (Bureau) proposes to 
streamline its regulations on transferring offenders to or from foreign 
countries by eliminating language that constitutes agency guidance to 
staff. Guidance language will be retained in the relevant Bureau 
policy. Below is an analysis of each new proposed section.

Section 527.40 Purpose and Scope

    This section more concisely describes the statutory authority (18 
U.S.C. 4100, et seq.) for the Bureau's procedures for transferring 
offenders to foreign countries and states that the purpose of this 
subpart is to describe those procedures. We propose to delete obsolete 
references to Public Law 95-144, as it has been codified as 18 U.S.C. 
4100, and also propose to delete the recitation of authority which 
stated that ``18 U.S.C. 4102 authorizes the Attorney General to act on 
behalf of the United States in regard to such treaties. In accordance 
with the provisions of 28 CFR 0.96b, the Attorney General has delegated 
to the Director of the Bureau of Prisons, and to designees of the 
Director, the authority to receive custody of, and to transfer to and 
from the United States, offenders in compliance with the conditions of 
the treaty.'' This authority is stated elsewhere in regulation and in 
the Authority section preceding these regulations and is therefore not 
necessary to repeat in these regulations.

Section 527.41 Definitions

    This section continues to define the terms ``treaty nation,'' 
``state prisoner,''

[[Page 79]]

``departure institution,'' and ``admission institution.'' We make a few 
minor changes to clarify that ``treaty nation'' is ``a country with 
which the United States has a transfer treaty relationship either 
through a bilateral treaty or multilateral transfer convention,'' 
instead of the former language, which incorrectly stated that countries 
enter into treaties ``with the United States on the Execution of Penal 
Sentences.'' This language is not common to all transfer agreements, 
which are normally made through bilateral treaties or multilateral 
transfer conventions with several countries at once or future countries 
who will accede to the convention.
    We also clarify that an inmate can be a ``citizen or national'' of 
a foreign country, not just a citizen.

Section 527.42 Limitations on Transfer of Offenders to Foreign 
Countries

    This section more concisely states the previous substantive 
provisions indicating that an inmate may not be considered for return 
to the inmate's country of citizenship or nationality unless the inmate 
satisfies specific requirements imposed by 18 U.S.C. 4100-4115 and the 
transfer treaties and conventions.
    We delete subsection (a), which stated that an inmate in custody 
for civil contempt may not be considered for return to the inmate's 
country of citizenship; and subsection (b), which stated that an inmate 
with a committed fine may not be considered for return to the inmate's 
country of citizenship without the United States court's permission. 
Both of these exceptions are obscure limitations that have not arisen 
for the Bureau and therefore do not need to be identified in 
regulation.
    In this section, we also propose to delete language indicating 
that, ``[w]hen considered appropriate, the Warden may contact the 
sentencing court to request the court's permission to process the 
inmate's application for return to the inmate's country of 
citizenship.'' This language is the Director's guidance to the Warden, 
and is more appropriate for implementing text in policy than regulation 
text.

Section 527.43 Notification of Inmates

    This section continues to state that inmates will be notified 
regarding information on international offender transfers through the 
institution's admission and orientation program and by the case manager 
of an inmate who is a citizen or national of a treaty nation. This 
section also continues to indicate that the inmate must be given 
individual notice of the availability of the transfer program, provided 
with an opportunity to inquire about transfer to the country of which 
the inmate is a citizen or national, and informed of the procedures set 
forth in this part. This section was rewritten for clarity. No 
substantive language or requirements were changed in this section.

Section 527.44 Request for Transfer to Country of Citizenship or 
Nationality

    This section consists only of current Sec.  527.44(a), unchanged, 
which states that an inmate who is qualified for and desires to return 
to the inmate's country of citizenship or nationality for service of a 
sentence imposed in a United States Court must indicate the inmate's 
interest by completing and signing the appropriate form and giving it 
to Bureau staff for further processing. The rest of Sec.  527.44 is 
split between the following two proposed regulations. This 
reorganization is being proposed for clarity.

Section 527.45 Bureau Processing of the Transfer Request

    This section consists of the substance of current Sec. Sec.  
527.44(b) through (d). It more concisely indicates that the Warden will 
forward the transfer application to the Assistant Director, 
Correctional Programs Division, Central Office, who will then review 
the material, submit it to the Department of Justice for review, and 
notify the inmate of determinations made by the Department of Justice.

Section 527.46 Transfer Procedures

    This section consists of the substance of current Sec.  527.44(e) 
through (h), which describe transfer procedures. This regulation states 
that if the Department of Justice approves the transfer request, the 
treaty nation will be asked to consent to the transfer of its citizen 
or national, and the inmate will be informed of the determination. If 
the treaty nation consents, the United States will arrange a consent 
verification hearing, held before a U.S. Magistrate Judge or other 
judicial officer as specified in 18 U.S.C. 4107 and 4108. If the 
foreign national prisoner consents to the transfer, the Department of 
Justice will notify the transfer nation.
    This section also indicates that following the verification 
hearing, the Bureau will arrange for delivery of the inmate to the 
authorities of the country of citizenship or nationality. We propose to 
delete two provisions, currently Sec.  527.44(h)(1) and (2), which 
state that the Assistant Director shall advise the Warden of these 
arrangements and that the Warden shall arrange for the inmate to be 
transported to the foreign authorities and assure that the required 
documentation accompanies each inmate transported. Both of these 
provisions are guidance to staff and are more appropriately retained in 
implementing text in policy.

Section 527.47 Transfer of State Prisoners to Other Countries

    This section repeats verbatim current Sec.  527.45, which states 
that the Bureau may assume custody of a state prisoner who has been 
approved for transfer to a treaty nation for the purpose of 
facilitating the transfer to the treaty nation. Once approved, the 
state is not required to contract for the placement of the prisoner in 
federal custody, nor to reimburse the United States for the cost of 
confinement (as would ordinarily be required by 18 U.S.C. 5003).

Section 527.48 Transfer of American National Prisoners From Foreign 
Countries

    This section more concisely encompasses current Sec.  527.46, 
Receiving United States citizens from other countries. We simply state 
that the Bureau is responsible for sending escorts to foreign countries 
to retrieve American national prisoners who have been approved for 
transfer and have had their consent verification hearing. In addition, 
the Bureau must make transfer arrangements and coordinate with the U.S. 
Parole Commission for proceedings to determine how the inmate's 
sentence will be administered.
    We propose to delete the following subparagraphs, however, because 
they are guidance to staff which does not need to be in regulation:
    Subparagraph (a) is direction to staff accepting custody of 
American inmates from a foreign authority to ensure that particular 
documentation, such as a certified copy of the sentence, a statement 
detailing the offense, and citizenship papers, is available prior to 
accepting custody of the inmate.
    Subparagraph (b) is direction to the Assistant Director, 
Correctional Programs Division, to direct staff to escort the offender 
from the transporting country to the admission institution, citing 28 
CFR 0.96b as the authority to escort the offender. It also directs 
Wardens to make appropriate housing requirements with a nearby jail if 
an admission institution is not able to accept the inmate.
    Subparagraph (c) requires staff to arrange for a newly arrived 
inmate to receive a complete physical examination, advise the local 
U.S. Probation Office of the inmate's arrival, and notify the U.S. 
Parole Commission of the inmate's arrival and projected release date.

[[Page 80]]

    Subparagraph (d) directs staff to implement release procedures if 
staff determine that an inmate is entitled to immediate release via 
mandatory release or expiration of sentence with credits applied, but 
only after medical clearance and the results of an FBI fingerprint 
check.
    This language is the Director's guidance to staff, and is more 
appropriate for implementing text in policy than regulation text. It 
will be retained in policy guidance, as will all staff guidance deleted 
from these regulations.

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 proposed rule is not a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), and accordingly 
this proposed rule has not been reviewed by the Office of Management 
and Budget.

Executive Order 13132

    This proposed 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 EO 13132, we determine 
that this proposed 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 proposed 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 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 527

    Transfer of offenders to or from foreign countries.

Charles E. Samuels, Jr.,
Director, Bureau of Prisons.
    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 301 and 28 U.S.C. 509, 510, and delegated to the Director, 
Bureau of Prisons, we propose to amend 28 CFR part 527 as set forth 
below:

Subchapter B--Inmate Admission, Classification, and Transfer

PART 527--TRANSFERS

0
1. The authority citation for 28 CFR part 527 continues to read as 
follows:

    Authority:  5 U.S.C. Sec.  301; 18 U.S.C. 3565, 3569, 3621, 
3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 4100-4115, 4161-4166, 
(Repealed in part as to offenses committed on or after November 1, 
1987), 4201-4218, 5003, 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 
CFR 0.95-0.99.
0
2. Revise subpart E to read as follows:

Subpart E--Transfer of Offenders to Foreign Countries
Sec.
527.40 Purpose and scope.
527.41 Definitions.
527.42 Limitations on transfer of offenders to foreign countries.
527.43 Notification of inmates.
527.44 Request for transfer to country of citizenship or 
nationality.
527.45 Bureau determination on request for transfer.
527.46 Transfer procedures.
527.47 Transfer of state prisoners to other countries.

Subpart E--Transfer of Offenders to Foreign Countries


Sec.  527.40  Purpose and scope.

    This subpart describes the Bureau of Prisons (Bureau) procedures 
regarding its role in the transfer of offenders to foreign countries 
and the transfer of American offenders back to the United States 
pursuant to 18 U.S.C. 4100, et seq., and applicable transfer treaties 
and conventions.


Sec.  527.41  Definitions.

    For the purpose of this rule, the following definitions apply.
    (a) Treaty Nation. A country with which the United States has a 
transfer treaty relationship either through a bilateral treaty or a 
multilateral transfer convention.
    (b) State Prisoner. An inmate serving a sentence imposed in a court 
in one of the states of the United States, or in a territory or 
commonwealth of the United States.
    (c) Departure Institution. The Bureau of Prisons institution to 
which an eligible inmate is finally transferred for return to the 
country of which the inmate is a citizen or national.
    (d) Admission institution. The Bureau of Prisons institution where 
a United States citizen or national-inmate is first received from a 
treaty nation.


Sec.  527.42  Limitations on transfer of offenders to foreign 
countries.

    The transfer treaties and conventions, as well as 18 U.S.C. 4100-
4115, impose specific requirements that an inmate must satisfy in order 
to be returned to his or her country of citizenship or nationality.


Sec.  527.43  Notification of inmates.

    Foreign national inmates will be notified about the International 
Prisoner Transfer Program and the procedures to follow to apply for 
transfer as follows:
    (a) Through information provided in the institution's admission and 
orientation program; and
    (b) Through individual notice given to an inmate who is a citizen 
or national of a treaty nation. The notice must:
    (1) Reiterate the availability of the transfer program;
    (2) Provide the inmate with an opportunity to inquire about 
transfer to the country of which the inmate is a citizen or national; 
and
    (3) Inform the inmates of the procedures set forth in this part.


Sec.  527.44  Request for transfer to country of which inmate is a 
citizen or national.

    An inmate who is eligible for and desires to transfer to the 
country of which the inmate is a citizen or national for service of a 
sentence imposed in a United States Court must indicate the inmate's 
interest by completing and signing the appropriate form and giving it 
to Bureau staff for further processing.

[[Page 81]]

Sec.  527.45  Bureau determination on request for transfer.

    The following is the process by which determinations are made on an 
inmate's request to be transferred to the country of which the inmate 
is a citizen or national to serve a sentence imposed in a United States 
Court.
    (a) Warden's determination. Upon verifying that the inmate is 
eligible for transfer, the Warden forwards all relevant information, 
including a complete application package, to the Assistant Director, 
Correctional Programs Division, Central Office.
    (b) Central Office and Department of Justice determination.
    (1) The Assistant Director, Correctional Programs Division reviews 
the submitted material and forwards the application package to the 
Department of Justice for review.
    (2) The Department of Justice notifies the inmate of the 
determinations made.


Sec.  527.46  Transfer procedures.

    (a) Treaty nation determination. If the Department of Justice 
approves the transfer request, the treaty nation will be asked if it 
consents to the transfer of its citizen or national. The inmate will be 
informed of the determination made by the treaty nation.
    (b) Transfer to departure institution. The Bureau and the 
Department of Justice will arrange for the inmate to be transferred to 
an appropriate departure institution.
    (c) Consent verification hearing. If the treaty nation consents to 
the transfer, the United States will arrange a consent verification 
hearing for the prisoner as required by 18 U.S.C. 4107, 4108. This 
hearing is held before a U.S. Magistrate Judge or other judicial 
officer as specified in sections 4107 and 4108. The Bureau must ensure 
that the prisoner is available and present at the consent verification 
hearing.
    (d) Transfer to departure institution and foreign retrieval of 
inmate. If the foreign national prisoner gives consent to transfer at 
the consent verification hearing, the Department of Justice will notify 
the treaty transfer nation.


Sec.  527.47  Transfer of state prisoners to other countries.

    The Bureau of Prisons may assume custody of a state prisoner who 
has been approved for transfer to a treaty nation for the purpose of 
facilitating the transfer to the treaty nation. Once the state prisoner 
has consented to the transfer at the consent verification hearing, the 
Bureau assumes custody of the prisoner. The state is not required to 
contract for the placement of the prisoner in federal custody, nor to 
reimburse the United States for the cost of confinement (as would 
ordinarily be required by 18 U.S.C. 5003).


Sec.  527.48  Transfer of American national prisoners from foreign 
countries.

    The Bureau of Prisons is responsible for:
    (a) Sending escorts to foreign countries to retrieve American 
national prisoners who have been approved for transfer to the United 
States and who have had their consent verified at the consent 
verification hearing specified in 18 U.S.C. 4108; and
    (b) Making logistical arrangements for the transfer and 
coordinating with the United States Parole Commission for proceedings 
to determine how the sentence will be administered.
[FR Doc. 2013-31021 Filed 12-31-13; 8:45 am]
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