[Federal Register Volume 86, Number 198 (Monday, October 18, 2021)]
[Proposed Rules]
[Pages 57612-57614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22613]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 523 and 541

[BOP-1176R]
RIN 1120-AB76


FSA Time Credits

AGENCY: Bureau of Prisons, Justice.

ACTION: Notice of proposed rulemaking; reopening of comment period.

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SUMMARY: On November 25, 2020, the Bureau of Prisons (Bureau) published 
a proposed rule to revise its procedures regarding time credits as 
authorized by the First Step Act of 2018 (FSA), hereinafter referred to 
as ``FSA Time Credits.'' The comment period for that rule closed on 
January 25, 2021. The Bureau is reopening the comment period for an 
additional 30-day period to request further public comment on the 
applicability of the FSA Time Credits to D.C. Code Offenders.

DATES: The comment period for the proposed rule published November 25, 
2020, at 85 FR 75268, is reopened. Electronic comments must be 
submitted, and written comments must be postmarked, no later than 11:59 
p.m. on November 17, 2021.

ADDRESSES: Please submit electronic comments through the 
regulations.gov website, or mail written comments to

[[Page 57613]]

the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First 
Street NW, Washington, DC 20534.

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

SUPPLEMENTARY INFORMATION:

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and 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 
contains so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted 
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.

Discussion

    On November 25, 2020, the Bureau of Prisons (Bureau) published a 
proposed rule to revise its procedures regarding time credits as 
authorized by the First Step Act of 2018 (FSA) (85 FR 75268). The 
public comment period closed on January 25, 2021. The Bureau received 
more than two hundred and fifty responses to the publication of the 
proposed rule. However, upon review of the comments, it is unclear to 
the Bureau whether commenters had fully considered the issue of whether 
D.C. Code offenders in Bureau of Prisons custody are eligible for time 
credits under 18 U.S.C. 3632(d)(4), as added by the FSA.
    The November 25, 2020, proposed rule would allow only an ``eligible 
inmate'' to earn and apply FSA time credits and would expressly exclude 
from time-credit eligibility any inmate serving a term of imprisonment 
only for a conviction for an offense under the law of the District of 
Columbia. The FSA, however, is ambiguous as to whether those with 
convictions under the D.C. Code are eligible to apply toward prerelease 
custody FSA time credits earned through their participation in 
evidence-based recidivism reduction programs or productive activities, 
and therefore the Bureau has decided to reopen the comment period in 
order to ensure that it receives, reviews, and considers comments on 
this issue.
    Potentially relevant statutory provisions include:
     The FSA's definition of ``prisoner'' as ``a person who has 
been sentenced to a term of imprisonment pursuant to a conviction for a 
Federal criminal offense, or a person in the custody of the Bureau of 
Prisons,'' 18 U.S.C. 3635(4);
     The statement in section 105 of the FSA that nothing in 
the Act ``may be construed to provide authority to place a prisoner in 
prerelease custody or supervised release who is serving a term of 
imprisonment pursuant to a conviction for an offense under the laws of 
one of the 50 States, or of a territory or possession of the United 
States;''
     The FSA's identification of certain prisoners as 
ineligible to receive or apply time credits, including those convicted 
of certain enumerated, violent federal offenses, 18 U.S.C. 
3632(d)(4)(D), and those convicted before the date on which federal 
parole was abolished, FSA section 102(b)(3);
     The FSA provisions that require the Attorney General to 
develop and release a risk and needs assessment system that will, among 
other things, ``assess and determine to the extent practicable, the 
risk of violent or serious misconduct of each prisoner'' and 
``determine when a prisoner is ready to transfer into prerelease 
custody or supervised release in accordance with section 3624,'' and 
will also ``reassess the recidivism risk of each prisoner periodically, 
based on factors . . . that are dynamic and can reasonably be expected 
to change while in prison,'' and represent an ``objective and 
statistically validated method through which information is collected 
and evaluated to determine . . . the risk that a prisoner will 
recidivate upon release from prison,'' 18 U.S.C. 3632(a)(2, 4, 7), 
3635(6);
     The FSA's requirement that the Attorney General, in 
consultation with the Assistant Director for the Office of Probation 
and Pretrial Services, issue guidelines for use by the Bureau of 
Prisons in determining ``the appropriate type of prerelease custody or 
supervised release and level of supervision for a prisoner placed on 
prerelease custody'' and ``consequences for a violation of a condition 
of such prerelease custody by such a prisoner, including a return to 
prison and a reassessment of evidence-based recidivism risk level under 
the System,'' FSA section 102(b)(6);
     The D.C. Code's specification that ``felons sentenced 
pursuant to the D.C. Code'' are to be placed in the Bureau's custody 
and made subject to federal laws and regulations that are ``consistent 
with the sentence imposed,'' D.C. Code section 24-101(b);
     The D.C. Code's provision that offenders sentenced to 
imprisonment for felonies committed after August 5, 2000, ``may receive 
good time credit toward service of the sentence only as provided in 18 
U.S.C. 3624(b),'' D.C. Code section 24-403.01(d);
     The D.C. Code's specification that those sentenced to 
imprisonment after August 5, 2000, ``for a nonviolent offense may 
receive up to a one-year reduction'' for completing a substance-abuse-
treatment program in accordance with 18 U.S.C. 3621(e)(2), D.C. Code 
section 24-403.01(d-1)(1); and
     The D.C. Code's provision that certain D.C. Code offenders 
who committed their crimes before age 25 have an opportunity to be 
resentenced to a reduced term in accordance with D.C. Code section 24-
403.03.
    Making D.C. Code offenders eligible to apply time credits would 
enable some persons with convictions for violent offenses to benefit 
from the FSA time-credit program when those convicted for similar 
offenses under federal law would be ineligible. Conversely, making D.C. 
Code offenders ineligible would prevent some nonviolent offenders from 
benefiting from that program when those with convictions for similar 
offenses under federal law would be eligible. Accordingly, the Bureau 
is reopening the comment period and will accept comments for an 
additional 30 days after publication of this notice of proposed 
rulemaking.
    The Bureau is seeking comments only on this issue of whether D.C. 
Code offenders in the Bureau's custody are

[[Page 57614]]

eligible to apply time credits under 18 U.S.C. 3632(d)(4)--including 
the extent to which any of the statutory provisions listed in this 
notice might affect the ability of some or all D.C. Code offenders to 
apply time credits--and not on the other contents of the November 25, 
2020, proposed rule.
    Issued 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.

Michael D. Carvajal,
Director, Federal Bureau of Prisons.
[FR Doc. 2021-22613 Filed 10-15-21; 8:45 am]
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