[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Rules and Regulations]
[Pages 24484-24490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09613]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 550

[BOP-1168-F]
RIN 1120-AB68


Drug Abuse Treatment Program

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises the 
Residential Drug Abuse Treatment Program (RDAP) regulations to allow 
greater inmate participation in the program and positively impact 
recidivism rates.

DATES: This rule is effective on May 26, 2016.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 353-8248.

SUPPLEMENTARY INFORMATION: In this document, the Bureau revises the 
Residential Drug Abuse Treatment Program (RDAP) regulations to allow 
greater inmate participation in the

[[Page 24485]]

program and positively impact recidivism rates. Specifically, the 
Bureau (1) removes the regulatory requirement for RDAP written testing 
because it is more appropriate to assess an inmate's progress through 
clinical evaluation of behavior change (the written test is no longer 
used in practice); (2) removes existing regulatory provisions which 
automatically expel inmates who have committed certain acts (e.g., 
abuse of drugs or alcohol, violence, attempted escape); (3) limits the 
time frame for review of prior offenses for early release eligibility 
purposes to ten years before the date of federal imprisonment; and (4) 
lessens restrictions relating to early release eligibility.
    The proposed rule was published on July 22, 2015, (80 FR 43367). 
The comment period ended on September 21, 2015. In the proposed rule, 
we described the following changes:
    Section 550.50 Purpose and scope. The regulation previously stated 
that Bureau facilities have drug abuse treatment specialists who are 
supervised by a Coordinator and that facilities with residential drug 
abuse treatment programs (RDAP) should have additional specialists for 
treatment in the RDAP unit. This is inaccurate. We proposed to change 
the regulation to explain that the Bureau's drug abuse treatment 
programs, which include drug abuse education, RDAP and non-residential 
drug abuse treatment services, are provided by the Psychology Services 
Department.
    We also proposed to make a minor corresponding change in Sec.  
550.53(a)(1), which also refers inaccurately to the Drug Abuse Program 
Coordinator, when instead the course of activities referenced in that 
regulation is provided by the Psychology Services Department.
    Section 550.53 Residential Drug Abuse Treatment Program 
(RDAP)(f)(2). The Bureau proposed to remove subparagraph (f)(2) of 
Sec.  550.53, which required inmates to pass RDAP testing procedures 
and referred to an RDAP exam. The RDAP program no longer includes 
written testing as a requirement for completion of the program. 
Instead, RDAP uses clinical observation and clinical evaluation of 
inmate behavior change to assess readiness for completion. Therefore, 
the current language is inaccurate and imposes a requirement upon 
inmates that no longer exists.
    In 2010, the Bureau converted the Residential Drug Abuse Treatment 
Programs to the Modified Therapeutic Community Model of treatment 
(MTC). This evidenced-based model is designed to assess progress 
through treatment as determined by the participants' completion of 
treatment goals and activities on their individualized treatment plan, 
and demonstrated behavior change. Each participant jointly works with 
their treatment specialist to create the content of their treatment 
plan. Every three months, or more often if necessary, each participant 
meets with their clinical team (four or more treatment staff) to review 
their progress in treatment. Progress in treatment is determined 
through assessing the accomplishment of their treatment goals and 
activities, along with demonstrated behavior change, such as improved 
personal and social conduct, no disciplinary incidents, etc. 
Unsatisfactory progress is evident when the participant does not 
accomplish their treatment goals and does not demonstrate mastery of 
skill development.
    There are several studies about the effectiveness of the MTC model 
of treatment. The most seminal study pertaining to this topic is titled 
``Outcome Evaluation of A Prison Therapeutic Community for Substance 
Abuse Treatment.'' \1\
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    \1\ Wexler, H., Falkin, G., Lipton, D., (1990). Outcome 
Evaluation of A Prison Therapeutic Community for Substance Abuse 
Treatment. Criminal Justice and Behavior, vol.17 No.1, March 1990 
71-92, 1990 American Association for Correctional Psychology.
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    This behavioral form of assessing progress is a much more powerful 
form of assessment than assessing the results of a written test. The 
written test assesses knowledge, but knowledge does not necessarily 
demonstrate whether the program has positively affected an individual's 
behavior or addictive lifestyle.
    All of the treatment coordinators in the Bureau have a doctorate 
degree in psychology. They are well qualified to use their knowledge of 
treatment and the behavior of individuals suffering from substance 
abuse to objectively determine if a participant is ready to complete 
the program. There are three decades of evaluation research that 
support the efficacy of the therapeutic community model of treatment. 
The most comprehensive source of program description, theory, and 
summary of research associated with this model of treatment is found in 
the book entitled The Therapeutic Community: Theory, Model, and Method. 
New York: Springer Publishing Company, Inc. (De Leon, G. (2000).
    Section 550.53(g) Expulsion from RDAP. We proposed to remove Sec.  
550.53(g)(3), which required Discipline Hearing Officers (DHOs) to 
remove an inmate automatically from RDAP if there is a finding that the 
inmate has committed a prohibited act involving alcohol, drugs, 
violence, escape, or any 100-level series incident.
    Removing the language gives the Bureau more latitude and clinical 
discretion when determining which inmates should be expelled from the 
program. Inmates will then only be expelled from RDAP according to 
criteria in Sec.  550.53(g)(1) which allows inmates to be removed from 
the program by the Drug Abuse Program Coordinator because of disruptive 
behavior related to the program or unsatisfactory progress in 
treatment, and requires at least one formal warning before removal, 
unless there is documented lack of compliance and the inmate's 
continued presence would present an immediate problem for staff and 
other inmates.
    Removing paragraph (g)(3) removes the automatic expulsion of 
inmates committing the listed prohibited acts and allows for greater 
possibility of continuance of the program for inmates with discipline 
problems.
    Section 550.55(b) Inmates not eligible for early release. We 
proposed to modify language precluding inmates from consideration for 
early release if they have a prior felony or misdemeanor conviction for 
homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, 
or an offense that involves sexual abuse of minors. The Bureau modifies 
this language to clarify that we intend to limit consideration of 
``prior felony or misdemeanor'' convictions to those which were imposed 
within the ten years prior to the date of sentencing for the inmate's 
current commitment. By making this change, the Bureau clarifies that it 
will not preclude from early release eligibility those inmates whose 
prior felony or misdemeanor convictions were imposed longer than ten 
years before the date of sentencing for the inmate's current 
commitment.
    Title 18 U.S.C. 3621(e) provides the Director of the Bureau of 
Prisons the discretion to grant an early release of up to one year upon 
the successful completion of a residential drug abuse treatment 
program. In exercising the Director's statutory discretion, we 
considered the crimes of homicide, rape, robbery, aggravated assault, 
arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR) 
Program, violent crime is composed of four offenses: Murder and 
nonnegligent manslaughter, rape, robbery, and aggravated assault. 
Violent crimes are defined in the UCR Program as those offenses which 
involve force or threat of force. The Director exercised his 
discretion, therefore, to include these categories of violent crimes 
and also expanded the list to

[[Page 24486]]

include arson and kidnaping, as they also are crimes of an inherently 
violent nature and particular dangerousness to the public.
    The Director exercises discretion to deny early release eligibility 
to inmates who have a prior felony or misdemeanor conviction for theses 
offenses because commission of such offenses rationally reflects the 
view that such inmates displayed readiness to endanger the public. The 
UCR explained that ``because of the variances in punishment for the 
same offenses in different state codes, no distinction between felony 
and misdemeanor crimes was possible.''
    The application of national standards to the numerous local, state, 
tribal, and federal prior convictions promotes uniformity, but creates 
unique issues since each separate entity will have its own criminal 
statutory schemes in which offenses may be categorized as either 
misdemeanors or felonies. Limiting the Bureau to an analysis of how an 
offense is categorized in local, state, tribal, or federal criminal 
codes, rather than to an analysis of the nature of the prior offense, 
would effectively prevent the Director from exercising the discretion 
authorized by 18 U.S.C. 3621(e). Furthermore, eliminating the analysis 
of prior violent misdemeanor convictions would allow inmates to receive 
the benefit of early release merely because of the manner in which the 
prior convictions were categorized.
    Additionally, 28 CFR 550.55(b)(6) provides that inmates who have 
been convicted of an attempt, conspiracy, or other offense which 
involved certain underlying offenses are also precluded from early 
release eligibility. Many state statutes provide that ``attempt'' 
convictions are to be categorized as one degree lower than the 
underlying offense (e.g., Alaska Statutes sec. 11.31.100(d), N.C. Gen 
Stat. sec. 14-2.5, Tex. Penal Code sec. 15.01(d), and Wash. Rev. Code 
sec. 9A.28.020(3)). Therefore, eliminating the analysis of prior 
misdemeanor convictions may result in offenders convicted of attempting 
to commit a precluding offense being found eligible for early release, 
despite the provisions of 28 CFR 550.55(b)(6).
    Further, based on a random sampling of inmates who participated in 
RDAP but were precluded from RDAP early release eligibility, the Bureau 
estimates that of the 856 inmates precluded in the year 2014 based only 
on convictions for prior offense, at least half that number would have 
been eligible for early release if the Bureau had not considered prior 
offenses greater than 10 years old. The Fiscal Year 2015 estimated 
annual marginal rate to incarcerate an inmate in the Bureau of Prisons 
is $11,324 per inmate. Based on an estimate of 400 inmates released up 
to a year early if this proposed rule change is made, that could equate 
to a cost avoidance of over $4.5 million per year.
    Also, in Sec.  550.55(b), the Director exercises his discretion to 
disallow particular categories of inmates from eligibility for early 
release, including, in (6), those who were convicted of an attempt, 
conspiracy, or other offense which involved an underlying offense 
listed in paragraph (b)(4) and/or (b)(5) of Sec.  550.55. We narrowed 
the language of Sec.  550.55(b)(6) to preclude only those inmates whose 
prior conviction involved direct knowledge of the underlying criminal 
activity and who either participated in or directed the underlying 
criminal activity. This change tailors the regulation to the 
congressional intent to exclude from early release consideration only 
those inmates who have been convicted of a violent offense. 
Furthermore, the changed language expands early release benefits to 
more inmates.
    Beginning in 1991, in coordination with the National Institute on 
Drug Abuse, the Bureau conducted a 3-year outcome study of the RDAP. 
Federal Bureau of Prisons (2000). TRIAD Drug Treatment Evaluation 
Project Final Report of Three-Year Outcomes: Part I. (``TRIAD Study''). 
The study evaluated the effect of treatment on both male and female 
inmates (1,842 men and 473 women). This study demonstrates that the 
Bureau's RDAP makes a positive difference in the lives of inmates and 
improves public safety.
    The TRIAD study showed that the RDAP program is effective in 
reducing recidivism. Male participants were 16 percent less likely to 
recidivate and 15 percent less likely to relapse than similarly 
situated inmates who do not participate in residential drug abuse 
treatment for up to 3 years after release. The analysis also found that 
female inmates who participate in RDAP are 18 percent less likely to 
recidivate than similarly situated female inmates who do not 
participate in treatment.
    The TRIAD study defined criminal recidivism was defined two ways: 
(1) An arrest for a new offense or (2) an arrest for a new offense or 
supervision revocation. Revocation was defined as occurring only when 
the revocation was solely the result of a technical violation of one or 
more conditions of supervision (e.g., detected drug use, failure to 
report to probation officer). Drug use as a post-release outcome, for 
the purposes of the study, referred to the first occurrence of drug or 
alcohol use as reported by U.S. Probation officers (i.e., a positive 
urinalysis (u/a), refusal to submit to a urinalysis, admission of drug 
use to the probation officer, or a positive breathalyser test).
    Offenders who completed the residential drug abuse treatment 
program and had been released to the community for three years were 
less likely to be re-arrested or to be detected for drug use than were 
similar inmates who did not participate in the drug abuse treatment 
program. Specifically, 44.3 percent of male inmates who completed the 
program were likely to be re-arrested or revoked within three years 
after release to supervision in the community, compared to 52.5 percent 
of those inmates who did not receive such treatment. For women, 24.5 
percent of those who completed the residential drug abuse treatment 
program were arrested or revoked within three years after release, 
compared to 29.7 percent of the untreated women.
    With respect to drug use, 49.4 percent of men who completed 
treatment were likely to use drugs within 3 years following release, 
compared to 58.5 percent of those who did not receive treatment. Among 
female inmates who completed treatment, 35.2 percent were likely to use 
drugs within the three-year postrelease period in the community, 
compared to 42.6 percent of those who did not receive such treatment.
    Section 550.56 Community Transitional Drug Abuse Treatment Program 
(TDAT). In addition to changing ``Transitional Drug Abuse Treatment 
Program (TDAT)'' to ``Community Treatment Services (CTS)'' throughout 
this regulation as indicated earlier, we also deleted paragraph (c), 
which appears to require that inmates successfully completing RDAP and 
participating in transitional treatment programming must participate in 
such programming for one hour per month. The provision in the 
regulation was an error. It did not relate to Community Treatment 
Services (CTS), but instead related to RDAP. It was therefore 
unnecessary to retain this language. The substance of this language 
will be retained as implementing text in the relevant policy statement 
as part of RDAP procedures.
    Comments: We received a total of 187 comments during the comment 
period. Approximately 77 were in support of the proposed rule. Eighteen 
``comments'' sent, although captioned as ``comments,'' were not 
properly phrased as comments because they either related to personal 
accounts of inmate eligibility for drug abuse treatment and/or early 
release eligibility, or simply did not address issues raised in the

[[Page 24487]]

proposed rule. We address the issues raised in the remaining 92 
comments below.
    Discussion of Comments: In summary, for the reasons discussed 
below, the Bureau adopts the regulatory changes of the proposed rule 
without change.
    Comment: Inmates with gun possession offenses should be eligible 
for early release.
    Approximately 58 commenters felt that eligibility for early release 
should be offered for participation in RDAP to inmates with ``non-
violent'' offenses and/or inmates with convictions for offenses in 
which firearm possession was present but perhaps no evidence of actual 
use was found.
    We have addressed this issue in the final rule published on January 
14, 2009 (74 FR 1892), in which we stated the following:
    Under 18 U.S.C. 3621(e), the Bureau has the discretion to determine 
eligibility for early release consideration (See Lopez v. Davis, 531 
U.S. 230 (2001)). The Director of the Bureau exercises discretion to 
deny early release eligibility to inmates who have a felony conviction 
for the offenses listed in Sec.  550.55(b)(5)(i)-(iv) because 
commission of such offenses illustrates a readiness to endanger the 
public. Denial of early release to all inmates convicted of these 
offenses rationally reflects the view that, in committing such 
offenses, these inmates displayed a readiness to endanger another's 
life.
    The Director of the Bureau, in his discretion, chooses to preclude 
from early release consideration inmates convicted of offenses 
involving carrying, possession or use of a firearm and offenses that 
present a serious risk of physical force against person or property, as 
described in Sec.  550.55(b)(5)(ii) and (iii). Further, in the 
correctional experience of the Bureau, the offense conduct of both 
armed offenders and certain recidivists suggests that they pose a 
particular risk to the public. There is a significant potential for 
violence from criminals who carry, possess or use firearms.
    As the Supreme Court noted in Lopez v. Davis, ``denial of early 
release to all inmates who possessed a firearm in connection with their 
current offense rationally reflects the view that such inmates 
displayed a readiness to endanger another's life.'' Id. at 240. The 
Bureau adopts this reasoning. The Bureau recognizes that there is a 
significant potential for violence from criminals who carry, possess or 
use firearms while engaged in felonious activity. Thus, in the interest 
of public safety, these inmates should not be released months in 
advance of completing their sentences.
    It is important to note that these inmates are not precluded from 
participating in the drug abuse treatment program. However, these 
inmates are not eligible for early release consideration because the 
specified elements of these offenses pose a significant threat of 
dangerousness or violent behavior to the public. This threat presents a 
potential safety risk to the public if inmates who have demonstrated 
such behavior are released to the community prematurely. Also, early 
release would undermine the seriousness of these offenses as reflected 
by the length of the sentence which the court deemed appropriate to 
impose.
    Comment: All inmates participating in any kind of drug treatment 
should be eligible for early release, violent offenders should be 
eligible, non-U.S. citizens should be eligible:
    Approximately 12 commenters stated that all inmates participating 
in any type of drug treatment with the Bureau of Prisons should be 
eligible for early release, including non-U.S. citizens and all other 
currently non-eligible inmates.
    18 U.S.C. 3621(e) only authorizes the Bureau to extend drug abuse 
treatment participation and eligibility for early release to inmates 
with ``a substance abuse problem,'' not to all inmates. Although, by 
statute, inmates without a substance abuse problem may not have the 
opportunity for early release consideration, Sec.  550.52 allows all 
inmates to participate in non-residential drug abuse treatment 
services. The final rule seeks to make the program even more inclusive.
    In the final rule, we modify the language of Sec.  550.55(b)(4), 
which precludes inmates from consideration for early release if they 
have a prior felony or misdemeanor conviction for homicide, forcible 
rape, robbery, aggravated assault, arson, kidnaping, or an offense that 
involves sexual abuse of minors. The Bureau modifies this language to 
clarify that we intend to limit consideration of ``prior felony or 
misdemeanor'' convictions to those which were imposed within the ten 
years prior to the date of sentencing for the inmate's current 
commitment. By making this change, the Bureau clarifies that it will 
not preclude from early release eligibility those inmates whose prior 
felony or misdemeanor convictions were imposed longer than ten years 
before the date of sentencing for the inmate's current commitment.
    18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons 
the discretion to grant an early release of up to one year upon the 
successful completion of a residential drug abuse treatment program. In 
exercising the Director's statutory discretion, we considered the 
crimes of homicide, rape, robbery, aggravated assault, arson, and 
kidnaping. In the FBI's Uniform Crime Reporting (UCR) Program, violent 
crime is composed of four offenses: Murder and non-negligent 
manslaughter, rape, robbery, and aggravated assault. Violent crimes are 
defined in the UCR Program as those offenses which involve force or 
threat of force. The Director exercised his discretion, therefore, to 
include these categories of violent crimes and also expanded the list 
to include arson and kidnaping, as they also are crimes of an 
inherently violent nature and particular dangerousness to the public.
    As mentioned, this change is being made to clarify that inmates 
will be eligible for early release eligibility if their prior felony or 
misdemeanor convictions are older than ten years before the date of 
sentencing for the inmate's current commitment. In other words, for 
example, if an inmate's prior felony or misdemeanor was imposed nine 
years before the date of sentencing for the inmate's current 
commitment, the inmate WILL NOT be considered for early release 
eligibility. The Director exercises discretion to deny early release 
eligibility to inmates who have a prior felony or misdemeanor 
conviction for theses offenses (within the ten years prior to the date 
of sentencing for the inmate's current commitment) because commission 
of such offenses rationally reflects the view that such inmates 
displayed readiness to endanger the public. The UCR explained that 
``because of the variances in punishment for the same offenses in 
different state codes, no distinction between felony and misdemeanor 
crimes was possible.''
    It is important to note that the Bureau does not deny drug abuse 
treatment to any inmates, including inmates who are not U.S. citizens. 
Instead, we offer several program options, such as a drug abuse 
education course or non-residential drug abuse treatment to inmates who 
have drug problems but who do not otherwise meet the admission criteria 
for the RDAP. These options are currently available for ``non-U.S. 
citizen'' inmates.
    Comment: All inmates should be eligible for drug treatment.
    Several commenters stated that inmates whose records and/or 
offenses of conviction show no elements of drug abuse should also be 
permitted to participate in drug treatment.
    As noted in response to the previous comment, the Bureau does not 
deny

[[Page 24488]]

drug abuse treatment to any inmates. We offer several program options, 
such as a drug abuse education course or non-residential drug abuse 
treatment to inmates who have drug problems, as provided in Sec.  
550.52, even if they do not meet the admission criteria for the RDAP.
    With regard to eligibility for early release, however, as stated 
earlier, 18 U.S.C. 3621(e) only authorizes the Bureau to extend drug 
abuse treatment participation and eligibility for early release to 
inmates with ``a substance abuse problem,'' not to all inmates.
    Because the early release is such a powerful incentive, as 
evidenced by over 5,000 inmates waiting to enter treatment, the Bureau 
must take appropriate measures to ensure that inmates requesting 
treatment actually have a substance abuse problem that can be verified 
with documentation. For those inmates who want treatment but do not 
have the requisite documentation to enter the RDAP, non-residential 
counseling services are available and encouraged.
    Comment: Inmates eligible for up to a year of early release should 
have it taken from ``time served.''
    Three commenters felt that if inmates earn early release 
eligibility, the time should be taken from ``time served.'' While it is 
unclear from the comments, the Bureau interprets this to mean that the 
commenters believe that up to a year of early release should be taken 
from the total amount of time that the inmate has already served, 
including any time in custody before the date of sentencing. However, 
the Bureau is bound by statute in this regard. 18 U.S.C. 3621(e)(2)(B) 
provides that ``[t]he 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.'' In other words, the early release time must be taken from the 
term of sentence imposed.
    Comment: Inmates who escape should be removed from RDAP.
    One commenter felt that inmates who escape should be removed from 
RDAP. The same commenter also felt that staff should retain discretion 
to remove inmates who commit 100 series prohibited acts.
    In the proposed rule, we proposed to delete language in Sec.  
550.53(g)(3) which requires the Drug Abuse Treatment Program 
Coordinator to remove an inmate automatically from RDAP if there is a 
finding by the Discipline Hearing Officer (DHO) that the inmate has 
committed a prohibited act involving alcohol, drugs, violence, escape, 
or any other 100-level series incident. As we stated in the proposed 
rule, removing the language would give the Bureau more latitude and 
clinical discretion when determining which inmates should be expelled 
from the program. The final rule retains this revised language. The 
Bureau will retain the ability to remove inmates if they commit a 100-
level series incident, if, under the criteria in (g)(2), they are given 
at least one formal warning before removal or when the documented lack 
fo compliance with program standards is of such mangnitude that an 
inmate's continued presence would create an immediate and ongoing 
problem for staff and other inmates, but automatic expulsion due to 
commission of a 100-level prohibited act will not occur.
    As stated above, because the automatic expulsion language is 
deleted, inmates will only be expelled from RDAP according to criteria 
in Sec.  550.53(g)(1) which allows inmates to be removed from the 
program by the Drug Abuse Program Coordinator because of disruptive 
behavior related to the program or unsatisfactory progress in 
treatment, and requires at least one formal warning before removal, 
unless there is documented lack of compliance and the inmate's 
continued presence would present an immediate problem for staff and 
other inmates. Removing paragraph (g)(3) removes the automatic 
expulsion of inmates committing the listed prohibited acts and allows 
for greater possibility of continuance of the program for inmates with 
discipline problems.
    Comment: Drug treatment specialists should have some skills in 
addiction treatment or addiction education.
    One commenter felt that drug treatment specialists should be 
qualified in addiction treatment or education. As we stated in the 
preamble to the proposed rule, all of the treatment ``specialists,'' 
also known as ``coordinators'' in the Bureau have a doctorate degree in 
psychology. They are well qualified to use their knowledge of treatment 
and the behavior of individuals suffering from substance abuse to 
objectively determine if a participant is ready to complete the 
program.
    Comment: Increase incentives for those who participate in drug 
treatment but are not eligible for early release.
    Two commenters believed that the Bureau should increase the 
incentives that are available for inmates who participate in drug 
treatment but may not be eligible for early release. Currently, 28 CFR 
550.54 describes possible incentives for RDAP participation, including 
limited financial awards, community-based treatment programs, preferred 
living quarters, special recognition privileges, achievement awards, 
and formal consideration for a nearer release transfer for medium and 
low security inmates. The Bureau believes the allowance of these 
incentives is adequate.
    Comment: RDAP waiting lists are too long.
    One commenter felt that inmate waiting lists for participation in 
RDAP treatment are too long. Currently, the Bureau has over 5,000 
inmates waiting for residential treatment that is provided with limited 
Bureau resources. Inmates are selected for admission based on their 
proximity to release. Those nearest to release enter the program first. 
Using this method, we are able to ensure all inmates who qualify for 
the program, and volunteer to participate, are able to complete the 
program before their release from prison.
    Comment: RDAP should be only 6 months instead of 9 months.
    One commenter felt that the 9-month RDAP was ``too long'' and that 
the program should instead be no more than 6 months.
    Research of prison drug treatment programs has shown a greater 
percentage of success in treatment if a unit-based component of the 
treatment lasts for nine to twelve months. One study found a strong 
relationship between time-in-program and treatment outcomes. Wexler, 
Falkin, & Lipton: Outcome Evaluation of A Prison Therapeutic Community 
for Substance Abuse Treatment. Criminal Justice and Behavior, Vol. 17 
No. 1, March 1990. In this study, of the male inmates who participated 
in a drug treatment program, the percentage of those who had no parole 
violations during community supervision rose from 49 percent for those 
who remained less than three months to 77 percent for parolees who were 
in the program between nine and twelve months while in prison. Similar 
findings were obtained for females, although the percentage of those 
who had no parole violations was higher than for their male 
counterparts (79 percent for those who remained in treatment less than 
three months to the entire program and 92 percent for those who 
completed the nine- to twelve-month program). Additionally, the study 
also found that individuals who participate in a prison-based drug 
treatment for longer than twelve months do not have outcomes that are 
as successful as those who participated for nine to twelve months. An 
intensive residential treatment

[[Page 24489]]

period between nine and twelve months near the end of an offender's 
sentence, coupled with individually tailored community transitional 
services program, may provide the best clinical outcomes and optimal 
resource utilization.
    Also, the National Institute on Drug Abuse funded three large-scale 
National Treatment evaluations covering three decades, the 1970s, 
1980s, and 1990s. Collectively, these studies--known as the Drug Abuse 
Reporting Program, the Treatment Outcome Prospective Study and the Drug 
Abuse Treatment Outcome Study, examined treatment performance and 
predictors of treatment outcomes for samples of 65,000 individuals 
admitted for drug abuse treatment. NIH Publication Number 02-4877, 
August 2002. This NIH Publication provides one of the most 
comprehensive overviews of the most salient research findings derived 
from the 250 publications. Findings from publications based on this 
research give broad support for the effectiveness of treatment, 
particularly for those with an adequate length of stay.
    The Bureau's inmate population generally tends toward greater 
instances of addictive disorders, anti-social personality disorders, 
and other types of disorders, such as depression, anxiety, etc. These 
additional issues, which must be dealt with when treating an inmate's 
substance abuse problem, increase the difficulty of successfully 
treating an inmate within a six-month period. Although the Bureau makes 
specific treatment decisions for inmates on a case-by-case basis, based 
on the above research, and given the greater difficulty inherent in 
maintaining the success of drug treatment for inmates, we chose to 
require the unit-based component to be at least nine to twelve months 
to afford the greatest likelihood of success in treatment.
    Comment: Staff should receive training regarding lesbian, gay, 
bisexual and transgender sensitivity issues.
    One commenter stated that ``[b]ecause [lesbian, gay, bisexual and 
transgender] LGBTQ people face additional challenges while 
incarcerated, from physical safety to accessing health care, we 
recommend that all treatment specialists receive cultural competency 
training to best address the needs of LGBTQ prisoners in RDAP.''
    The Bureau agrees with this important concern. All Bureau staff 
receive training both at the start of their employment and annually 
regarding the Bureau's anti-discrimination policy, including cultural 
competency training to best address the needs of LGBTQ prisoners in 
RDAP. It is the policy of the Bureau of Prisons to ``eliminate any 
internal policy, practice, or procedure that results in discrimination 
on the basis of race, color, sex, religion, national origin, age, 
physical or mental disability, genetic information, equal pay, 
pregnancy, retaliation, sexual orientation, gender identity, or status 
as a parent'' Bureau of Prisons Anti-Discrimination Policy, PS 3713.25, 
June 16, 2014.

Executive Orders 12866 and 13563

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and Executive Order 13563, ``Improving 
Regulation and Regulatory Review.'' These executive orders direct 
agencies to assess all costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility.
    The Director, Bureau of Prisons has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this rule has been reviewed by the Office of 
Management and Budget.
    As context regarding the current impact of the RDAP (i.e., prior to 
the changes made in this rule), 18,102 inmates participated in the 
residential drug abuse treatment program in FY 2014. 18 U.S.C. 
3621(e)(2) allows the Bureau to grant a non-violent offender up to one 
year off his/her term of imprisonment for successful completion of the 
RDAP. In FY 2014, 5,229 inmates received a reduction in their term of 
imprisonment resulting in a cost avoidance of nearly $50 million based 
on this law (average reduction was 10.4 months and the marginal cost 
avoidance was $10,994 annually). The changes made by this rule will 
likely increase the number of current inmates who benefit from the RDAP 
program and increase the number of inmates who may be eligible for 
early release, thereby resulting in cost avoidance to the Bureau in the 
future.
    For instance, with regard to Sec.  550.55(b)(6), changing ``other 
offense'' to ``solicitation to commit,'' based on prior year data (from 
2014), we estimate that approximately 45 inmates would be made eligible 
for early release as a result of the changes made by this rule.
    Since 2013, the Bureau was able to expand RDAP capacity due to 
increased funding through annual congressional budgeting processes. The 
Bureau will therefore not require more resources in order to put more 
individuals through RDAP. RDAP is a nine-month program. The program has 
a treatment capacity large enough to accommodate about 8,400 
participants at any given time. This number also reflects inmates who 
may drop out of the program and are replaced with other inmates on the 
wait list. Therefore, during a 12-month period, program capacity is 
filled twice (8,400 inmates will complete one nine-month term, and 
another 8,400 inmates will begin a new nine-month term), which means 
that at least 16,800 participants can be included in the program in a 
given year.

Executive Order 13132

    This regulation would 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 
rulemaking 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 section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
would not result in an annual effect on the economy of $100,000,000 or 
more; a

[[Page 24490]]

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.

Kathleen M. Kenney,
Assistant Director/General Counsel, Federal Bureau of Prisons.

    Accordingly, for the reasons set forth in the preamble, part 550 of 
title 28 of the Code of Federal Regulations is amended as follows:

PART 550--DRUG PROGRAMS

0
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).


0
2. Revise Sec.  550.50 to read as follows:


Sec.  550.50  Purpose and scope.

    The purpose of this subpart is to describe the Bureau's drug abuse 
treatment programs for the inmate population, to include drug abuse 
education, non-residential drug abuse treatment services, and 
residential drug abuse treatment programs (RDAP). These services are 
provided by Psychology Services department.

0
3. Amend Sec.  550.53 by revising paragraphs (a)(1), (a)(3), and (f), 
removing paragraph (g)(3), and redesignating paragraph (g)(4) as new 
paragraph (g)(3) to read as follows:


Sec.  550.53  Residential Drug Abuse Treatment Program (RDAP).

    (a) * * *
    (1) Unit-based component. Inmates must complete a course of 
activities provided by the Psychology Services Department in a 
treatment unit set apart from the general prison population. This 
component must last at least six months.
* * * * *
    (3) Community Treatment Services (CTS). Inmates who have completed 
the unit-based program and (when appropriate) the follow-up treatment 
and transferred to a community-based program must complete CTS to have 
successfully completed RDAP and receive incentives. The Warden, on the 
basis of his or her discretion, may find an inmate ineligible for 
participation in a community-based program; therefore, the inmate 
cannot complete RDAP.
* * * * *
    (f) Completing the unit-based component of RDAP. To complete the 
unit-based component of RDAP, inmates must have satisfactory attendance 
and participation in all RDAP activities.
* * * * *

0
4. In Sec.  550.55, revise paragraph (b)(4) introductory text and 
paragraph (b)(6), to read as follows:


Sec.  550.55  Eligibility for early release.

* * * * *
    (b) * * *
    (4) Inmates who have a prior felony or misdemeanor conviction 
within the ten years prior to the date of sentencing for their current 
commitment for:
* * * * *
    (6) Inmates who have been convicted of an attempt, conspiracy, or 
solicitation to commit an underlying offense listed in paragraph (b)(4) 
and/or (b)(5) of this section; or
* * * * *

0
5. Revise Sec.  550.56 to read as follows:


Sec.  550.56  Community Treatment Services (CTS).

    (a) For inmates to successfully complete all components of RDAP, 
they must participate in CTS. If inmates refuse or fail to complete 
CTS, they fail RDAP and are disqualified for any additional incentives.
    (b) Inmates with a documented drug use problem who did not choose 
to participate in RDAP may be required to participate in CTS as a 
condition of participation in a community-based program, with the 
approval of the Supervisory Community Treatment Services Coordinator.

[FR Doc. 2016-09613 Filed 4-25-16; 8:45 am]
 BILLING CODE 4410-05-P