[Federal Register Volume 87, Number 118 (Tuesday, June 21, 2022)]
[Proposed Rules]
[Pages 36787-36796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13217]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[BOP Docket No. 1179; AG Order No. 5439-2022]
RIN 1120-AB79


Home Confinement Under the Coronavirus Aid, Relief, and Economic 
Security (CARES) Act

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Coronavirus Aid, Relief, and Economic Security Act 
(``CARES Act'') authorizes the Director of the Bureau of Prisons 
(``Director''), during the covered emergency period and upon a finding 
by the Attorney General that emergency conditions resulting from the 
Coronavirus Disease 2019 (``COVID-19'') pandemic materially affect the 
functioning of the Bureau of Prisons (``Bureau'' or ``BOP''), to 
lengthen the maximum amount of time for which a prisoner may be placed 
in home confinement. This proposed rule affirms that the Director has 
the authority to allow prisoners placed in home confinement under the 
CARES Act to remain in home confinement after the expiration of the 
covered emergency period.

DATES: Comments are due on or before July 21, 2022.

ADDRESSES: Please submit electronic comments through the 
regulations.gov website. In the alternative, written comments may be 
mailed to the Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street NW, Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Crista Colvin, Office of General 
Counsel, Bureau of Prisons, phone (202) 353-4885.

SUPPLEMENTARY INFORMATION:

I. 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. 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 the 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 at 
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, nor 
will it be posted online. If you want to inspect the agency's public 
docket file in person by appointment, please see the FOR FURTHER 
INFORMATION CONTACT paragraph.

[[Page 36788]]

II. Discussion

A. Overview

    The CARES Act authorizes the Director of the Bureau of Prisons to 
lengthen the amount of time a prisoner may be placed in home 
confinement beyond the statutory maximum normally allowed under 18 
U.S.C. 3624(c)(2) as the Director deems appropriate.\1\ That authority 
under the CARES Act exists during the period for which there is a 
declaration of national emergency with respect to the COVID-19 pandemic 
and for 30 days after the termination of that declaration, provided 
that the Attorney General has made a finding that the emergency 
conditions materially affect the functioning of the Bureau of Prisons. 
The President declared the COVID-19 outbreak a national emergency 
beginning March 1, 2020; that national emergency was extended on 
February 24, 2021, and again on February 18, 2022, and is still in 
effect as of June 15, 2022.\2\ The Attorney General made the relevant 
finding with respect to the Bureau on April 3, 2020. See Memorandum for 
the BOP Director from the Attorney General, Re: Increasing Use of Home 
Confinement at Institutions Most Affected by COVID-19, at 1 (Apr. 3, 
2020), available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf (``April 3 Memo'').
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    \1\ See Coronavirus Aid, Relief, and Economic Security Act, 
Public Law 116-136, sec. 12003(b)(2), 134 Stat. 281, 516 (2020) 
(``CARES Act'').
    \2\ Proclamation 9994, Declaring a National Emergency Concerning 
the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 
18, 2020); see also Continuation of the National Emergency 
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 86 FR 
11599 (Feb. 26, 2021); Continuation of the National Emergency 
Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 
10289 (Feb. 23, 2022).
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    Following guidance from the Attorney General, the Director has 
exercised his discretion under the CARES Act to place thousands of 
inmates in home confinement during the pandemic emergency. These 
actions removed vulnerable inmates from congregate settings where 
COVID-19 spreads easily and quickly and also reduced crowding in BOP 
correctional facilities. Inmates placed in home confinement are 
considered in the custody of the Bureau and are subject to ongoing 
supervision, including monitoring, drug and alcohol testing, and check-
in requirements. They are not permitted to leave their residences 
except for work or other preapproved activities such as counseling. 
Inmates who violate these conditions may be disciplined and returned to 
secure custody. Violations of the conditions of home confinement 
requiring return have been rare during the pandemic emergency, however, 
and very few inmates placed in home confinement under the CARES Act 
have committed new crimes.
    Although the CARES Act plainly states that the Director's authority 
to lengthen the maximum period of home confinement exists during the 
covered emergency period, the Act is silent about what happens to an 
inmate who was placed in home confinement under this authority, but who 
has more than the lesser of ten percent of her sentence or six months 
remaining in her term of imprisonment after the covered emergency 
period expires. As explained in a recent opinion of the Office of Legal 
Counsel (``OLC''), and supported by the interpretation of the Bureau, 
the statute allows such individuals to remain in home confinement after 
the covered emergency period ends, as the Director deems appropriate. 
This interpretation is supported by the text, structure, and purpose of 
the CARES Act and therefore is the better reading of the statute, as 
more fully explained in OLC's December 21, 2021 opinion. See Discretion 
to Continue the Home-Confinement Placements of Federal Prisoners After 
the COVID-19 Emergency, 45 Op. O.L.C. __(Dec. 21, 2021), available at 
https://www.justice.gov/olc/file/1457926/download (``Home-Confinement 
Placements''). This interpretation, which the Department adopts in 
promulgating this rulemaking, also aligns with the Bureau's consistent 
position that the more appropriate reading of the statute is to permit 
the Bureau to conduct individualized assessments--as it does in making 
prisoner placements in other contexts--to determine whether any inmate 
should be returned to secure custody after the COVID-19 emergency ends.
    The Department's interpretation of the statute is also consistent 
with Congressional support for increasing the use of home confinement 
as part of reentry programming, as the Second Chance Act of 2007 and 
the First Step Act of 2018 demonstrate. In addition, implementation of 
this interpretation is operationally sound and provides flexibility in 
managing BOP-operated institutions as well as cost savings for the 
Bureau. Indeed, there is evidence that the Bureau can appropriately 
manage public safety concerns related to inmates in home confinement, 
and there are penological, rehabilitative, and societal benefits of 
allowing inmates to effectively prepare for life after the conclusion 
of their criminal sentences. Finally, as a practical matter, this 
interpretation permits the Bureau to consider whether returning CARES 
Act inmates to secure custody would increase crowding in BOP facilities 
and risk new, potentially serious COVID-19 outbreaks in prisons even 
after the broader national emergency has passed.
    For all of these reasons, the Department proposes to provide the 
Director with express authority and discretion to allow prisoners who 
have been placed in home confinement under the CARES Act to remain in 
home confinement after the conclusion of the covered emergency period.

B. Background

    On March 13, 2020, the President of the United States declared that 
a national emergency existed with respect to the outbreak of COVID-19, 
beginning on March 1, 2020.\3\ COVID-19 is caused by an extremely 
contagious virus known as SARS-CoV-2 that has spread quickly around the 
world.\4\ COVID-19 most often causes respiratory symptoms, but can also 
attack other parts of the body. The virus spreads when an infected 
person breathes out droplets and particles, and another person breathes 
in air that contains these droplets and particles, or they land on 
another person's eyes, nose, or mouth.\5\ Individuals in close contact 
with an infected person--generally less than 6 feet apart--are most 
likely to get infected. Although COVID-19 often presents with mild 
symptoms, some people become severely ill and die.\6\ Older adults and 
individuals with underlying medical conditions are at increased risk of 
severe illness or death. As of April 26, 2022, over 988,000 people in 
the United States have died from COVID-19.\7\
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    \3\ Proclamation 9994, Declaring a National Emergency Concerning 
the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 
13, 2020).
    \4\ U.S. Centers for Disease Control and Prevention, Basics of 
COVID-19 (updated Nov. 4, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html (last visited Apr. 26, 2022).
    \5\ U.S. Centers for Disease Control and Prevention, How COVID-
19 Spreads (updated July 14, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 26, 2022).
    \6\ U.S. Centers for Disease Control and Prevention, Basics of 
COVID-19 (updated Nov. 4, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html (last visited Apr. 26, 2022).
    \7\ U.S. Centers for Disease Control and Prevention, COVID Data 
Tracker, available at https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Apr. 26, 2022).
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    The United States Centers for Disease Control and Prevention 
(``CDC'') within the Department of Health and Human Services has 
recognized that the

[[Page 36789]]

COVID-19 pandemic presents unique challenges for correctional 
facilities, such as those the Bureau manages.\8\ These challenges 
include a high risk of rapid transmission due to congregate living 
settings, and a high risk of severe disease due to the high prevalence 
of pre-existing conditions and risk factors associated with severe 
COVID-19 illness in prison populations. In a letter to the Attorney 
General and the Director dated March 23, 2020, a bipartisan group of 
United States Senators expressed concern about the potential for COVID-
19 spread among, in particular, vulnerable Bureau staff and inmates, 
and called upon the Bureau to use available statutory authorities to 
increase its utilization of home confinement to mitigate the risk.\9\
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    \8\ CDC, Considerations for Modifying COVID-19 Prevention 
Measures in Correctional and Detention Facilities (June 22, 2021), 
available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/correction-detention/COVID-Corrections-considerations-for-loosening-restrictions-Webinar.pdf (last visited Apr. 26, 2022).
    \9\ Letter for Attorney General Barr & Director Carvajal from 
Senator Richard J. Durbin et al. (Mar. 23, 2020), available at 
https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BOP%20on%20COVID-19%20and%20FSA%20provisions%20-%20final%20bipartisan%20text%20with%20signature%20blocks.pdf (last 
visited Apr. 26, 2022) (``Conditions of confinement do not afford 
individuals the opportunity to take proactive steps to protect 
themselves, and prisons often create the ideal environment for the 
transmission of contagious disease. For these reasons, it is 
important that consistent with the law and taking into account 
public safety and health concerns, that the most vulnerable inmates 
are released or transferred to home confinement, if possible.'').
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    On March 26, 2020, the Attorney General issued a memorandum 
instructing the Director to prioritize use of home confinement, where 
authorized, to protect the health and safety of inmates and Bureau 
staff by minimizing the risk of COVID-19 spread in Bureau facilities, 
while continuing to keep communities safe.\10\ The Attorney General 
directed that the determination of whether to place an inmate in home 
confinement should be made on an individualized basis, taking into 
account the totality of the inmate's circumstances, the statutory 
requirements, and the following non-exhaustive discretionary factors:
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    \10\ Memorandum for the Director, Bureau of Prisons from the 
Attorney General, Re: Prioritization of Home Confinement As 
Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), 
available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf.
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     The age and vulnerability of the inmate to COVID-19;
     The security level of the facility housing the inmate, 
with priority given to inmates residing in low and minimum security 
facilities;
     The inmate's conduct in prison;
     The inmate's risk score under the Prisoner Assessment Tool 
Targeting Estimated Risk and Needs (``PATTERN''); \11\
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    \11\ PATTERN is a tool that measures an inmate's risk of 
recidivism and provides her with opportunities to reduce her risk 
score. See, e.g., Federal Bureau of Prisons, PATTERN Risk 
Assessment, https://www.bop.gov/inmates/fsa/pattern.jsp. It was 
created pursuant to the First Step Act of 2018. See Pub. L. 115-391, 
sec. 101(a), 132 Stat. 5194, 5196-97 (2018).
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     Whether the inmate had a reentry plan that would prevent 
recidivism and maximize public safety; and
     The inmate's crime of conviction and the danger the inmate 
would pose to the community.\12\
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    \12\ By April 2021, the Bureau clarified that the criminal 
history check covered both an inmate's crime of conviction and her 
broader criminal history. See Memorandum for Chief Executive 
Officers from Andre Matevousian et al., BOP RE: Home Confinement 
(Apr. 13, 2021), available at: http://www.bop.gov/foia/docs/Home%20Confinemet%20memo_2021_04_13.pdf.
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    The Attorney General's memorandum explained that some offenses 
would render an inmate ineligible for home confinement, and that other 
serious offenses would weigh more heavily against consideration for 
home confinement. It further explained that inmates who engaged in 
violent or gang-related activity while in prison, those who incurred a 
violation within the past year, or those with a PATTERN score above the 
``minimum'' range would not receive priority consideration under the 
memorandum.\13\
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    \13\ This criterion was later updated to include low and minimum 
PATTERN scores. See id.
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    Prior to the passage of the CARES Act, Congress had enacted three 
main sources of statutory authority to allow the Bureau to place 
inmates in home confinement as part of reentry programming. First, 18 
U.S.C. 3624(c)(2) authorizes the Director to transfer inmates to home 
confinement for the shorter of either 10 percent of the term of 
imprisonment or six months. That provision also directs the Bureau to 
``place prisoners with lower risk levels and lower needs on home 
confinement for the maximum amount of time permitted'' ``to the extent 
practicable.'' Second, Congress created a pilot program in the Second 
Chance Act of 2007 (``SCA''), which it reauthorized and modified in the 
First Step Act of 2018 (``FSA''), authorizing the Attorney General to 
place eligible elderly and terminally ill offenders in home confinement 
after they have served two-thirds of their term of imprisonment.\14\ 
Third, the FSA established earned time credits that eligible inmates 
could accrue through participating in recidivism-reducing programs and 
then apply for transfer to pre-release custody, including home 
confinement, without regard for the time frames set forth in 18 U.S.C. 
3624(c)(2).\15\
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    \14\ See FSA, Pub. L. 115-391, sec. 603(a), 132 Stat. 5194, 5238 
(2018), codified at 34 U.S.C. 60541.
    \15\ See FSA sec. 101, 132 Stat. at 5210-13, codified at 18 
U.S.C. 3624(g). The Bureau recently published a final rule codifying 
Bureau procedures regarding time credits that govern pre-release 
custody placements under section 3624(g). See FSA Time Credits, 87 
FR 2705 (Jan. 19, 2022).
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    The day after the Attorney General's first memorandum, on March 27, 
2020, the President signed into law the CARES Act, which expanded the 
authority of the Director to place inmates in home confinement in 
response to the COVID-19 pandemic upon a finding by the Attorney 
General. Specifically, the Act states:

    During the covered emergency period, if the Attorney General 
finds that emergency conditions will materially affect the 
functioning of the Bureau, the Director of the Bureau may lengthen 
the maximum amount of time for which the Director is authorized to 
place a prisoner in home confinement under the first sentence of 
section 3624(c)(2) of title 18, United States Code, as the Director 
determines appropriate.\16\
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    \16\ CARES Act sec. 12003(b)(2).

    The term ``covered emergency period'' refers to the period 
beginning on the date the President declared a national emergency with 
respect to COVID-19 and ending 30 days after the date on which the 
national emergency declaration terminates.\17\
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    \17\ Id. sec. 12003(a)(2).
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    On April 3, 2020, the Attorney General issued a second memorandum 
for the Director, finding that emergency conditions were materially 
affecting the functioning of the Bureau, and acknowledging that the 
Bureau was ``experiencing significant levels of infection at several of 
our facilities.'' \18\ The Attorney General instructed the Director to 
use the expanded home confinement authority provided in the CARES Act 
to place the most vulnerable inmates at the facilities most affected by 
COVID-19 in home confinement, following quarantine to prevent the 
spread of COVID-19 into the community, and guided by the factors set 
forth in the March 26, 2020 memorandum. The second memorandum made 
clear that although the Bureau should maximize the use of home 
confinement, particularly at affected institutions, the Bureau must 
continue to make an individualized determination whether home 
confinement is appropriate for each

[[Page 36790]]

inmate considered and must continue to act consistently with its 
obligation to preserve public safety.
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    \18\ See April 3 Memo at 1.
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    The Bureau subsequently issued internal guidance that, in addition 
to adopting the criteria in the Attorney General's memoranda, 
prioritized for home confinement inmates who had served 50 percent or 
more of their sentences or those who had 18 months or less remaining in 
their sentences and had served more than 25 percent of that 
sentence.\19\ That guidance also instructed that pregnant inmates 
should be considered for placement in a community program, to include 
home confinement. BOP later clarified that inmates with low or minimum 
PATTERN scores qualify equally for home confinement, and that the 
factors assessed to ensure inmates are suitable for home confinement 
include verifying that an inmate's current or a prior offense was not 
violent, a sex offense, or terrorism-related.\20\ It further 
implemented a requirement that inmates placed in home confinement 
receive instruction about how to protect themselves and others from 
COVID-19 transmission, based on guidance from CDC.\21\
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    \19\ See, e.g., Memorandum for Chief Executive Officers from 
Andre Matevousian et al., BOP, Re: Home Confinement (Nov. 16, 2020), 
available at https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf.
    \20\ See Memorandum for Chief Executive Officers from Andre 
Matevousian et al., BOP, Re: Home Confinement (Apr. 13, 2021), 
available at https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf.
    \21\ See id.
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    Since March 2020, following the Attorney General's directive, the 
Bureau has significantly increased the number of inmates placed in home 
confinement under the CARES Act and other preexisting authorities. 
Between March 26, 2020, and January 10, 2022, the Bureau placed in home 
confinement a total of 36,809 inmates.\22\ The majority of those 
inmates have since completed their sentences; as of January 10, 2022, 
there were 7,726 inmates in home confinement.\23\ According to the 
Bureau, 4,902 of these inmates were placed in home confinement pursuant 
to the CARES Act.
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    \22\ See Federal Bureau of Prisons, Frequently Asked Questions 
regarding potential inmate home confinement in response to the 
COVID-19 pandemic, https://www.bop.gov/coronavirus/faq.jsp (last 
visited Jan. 11, 2022).
    \23\ See id. (last visited Jan. 11, 2022).
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    When an inmate is placed in home confinement, he or she is not 
considered released from the custody of the Bureau of Prisons; rather, 
he or she continues serving a sentence imposed by a Federal court and 
administered by the Bureau of Prisons.\24\ Although inmates in home 
confinement are transferred from correctional facilities and placed in 
the community, they are required to remain in the home during specified 
hours, and are permitted to leave only for work or other preapproved 
activities, such as occupational training or therapy.\25\ Inmates in 
home confinement must submit to drug and alcohol testing, and 
counseling requirements. Supervision staff monitor inmates' compliance 
with the conditions of home confinement by electronic monitoring 
equipment or, in a few cases for medical or religious accommodations, 
frequent telephone and in-person contact. An inmate's failure to comply 
with the conditions of home confinement results in disciplinary action, 
which may include a return to secure custody or prosecution for escape.
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    \24\ See 18 U.S.C. 3621(a) (``A person who has been sentenced to 
a term of imprisonment . . . shall be committed to the custody of 
the Bureau of Prisons until the expiration of the term imposed . . . 
.'').
    \25\ Federal Bureau of Prisons Program Statement 7320.01, CN-2, 
Home Confinement (updated Dec. 15, 2017), available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf.
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    Management of inmates in home confinement since the beginning of 
the COVID-19 pandemic, the largest community confinement population in 
recent history, has been robust. According to the Bureau, as of March 
4, 2022, a small percentage of inmates placed in home confinement 
pursuant to the CARES Act--357 out of approximately 9,500 total 
individuals--had been returned to secure custody as a result of 
violations of the conditions of home confinement. Of this number, only 
8 were returned for new criminal conduct (6 for drug-related conduct, 1 
for smuggling non-citizens, and 1 for escape with prosecution).\26\ 
These data suggest that inmates placed on longer-term home confinement 
under the CARES Act can be and have been successfully managed, with 
only a limited number requiring return to secure custody for 
disciplinary reasons. Additional observation and research will need to 
be conducted to determine if this very low level of recidivism can be 
maintained, or if it was affected by the unique external circumstances 
caused by the global pandemic.
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    \26\ The term ``escape with prosecution'' indicates that a 
United States Attorney's Office has decided to prosecute an inmate 
for escape under 18 U.S.C. 751. Where a United States Attorney's 
Office does not prosecute, BOP imposes administrative sanctions.
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    Many inmates placed in home confinement during the COVID-19 
pandemic have reached the end of their term of incarceration, or will 
do so within the next six months. However, according to the Bureau, as 
of January 10, 2022, there were 2,826 total inmates placed in home 
confinement under the CARES Act with release dates in more than 12 
months. Of this total, there were 2,272 inmates with release dates in 
more than 18 months; 593 inmates with release dates in 5 years or more; 
and 27 inmates with release dates in 10 years or more. Many of these 
individuals--all of whom have been successfully serving their sentences 
in the community--may have release dates more than six months after the 
expiration of the covered emergency period when it expires, and 
therefore may not then be eligible for placement in home confinement 
under 18 U.S.C. 3624(c)(2).
    For all the reasons set forth above, the Department proposes to 
promulgate this rulemaking under the Attorney General's authority, see 
5 U.S.C. 301; 18 U.S.C. 4001(b)(1), to codify the Director's discretion 
to allow inmates placed in home confinement pursuant to the CARES Act 
to remain in home confinement after the covered emergency period 
expires. This rulemaking reflects the interpretation of the CARES Act 
set forth in OLC's December 21, 2021 opinion, is consistent with recent 
legislation from Congress supporting expanded use of home confinement, 
and advances the best interests of inmates and the Bureau from 
penological, rehabilitative, public health, and public safety 
perspectives.

C. Statutory Authority

    Section 12003(b)(2) of the CARES Act authorizes the Director to 
place inmates in home confinement, notwithstanding the time limits set 
forth in 18 U.S.C. 3624(c)(2), during and for 30 days after the 
termination of the national emergency declaration concerning COVID-19, 
provided that the Attorney General has made a finding that emergency 
conditions are materially affecting BOP's functioning. By the Act's 
plain terms, the Director's authority to place an inmate in home 
confinement under the CARES Act expires at the end of the covered 
emergency period, or if the Attorney General revokes his finding. The 
Act is silent, however, as to whether the Director has discretion to 
determine whether specific individuals placed in home confinement under 
the CARES Act may remain there after the expiration of the covered 
emergency period, or whether all inmates who are not eligible for home 
confinement under another authority must be returned to secure custody. 
The Department has concluded that the most reasonable reading of the 
CARES Act permits the Bureau to continue to make

[[Page 36791]]

individualized determinations about the conditions of confinement for 
inmates placed in home confinement under the CARES Act, as it does with 
respect to all prisoners,\27\ following the end of the covered 
emergency period. In its recent opinion, OLC concluded that section 
12003(b)(2) does not require the Bureau to return to secure custody 
inmates on CARES Act home confinement following the end of the covered 
emergency period.\28\ The Department incorporates the analysis from 
OLC's opinion into the preamble of this notice of proposed rulemaking.
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    \27\ See 18 U.S.C. 3621(a) (``A person who has been sentenced to 
a term of imprisonment . . . shall be committed to the custody of 
the Bureau of Prisons until the expiration of the term imposed . . . 
.'').
    \28\ See Home-Confinement Placements, 45 Op. O.L.C. __.
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    Even if the relevant provision of the CARES Act were considered 
ambiguous, however, the Department's interpretation represents a 
reasonable reading that would warrant deference under Chevron, U.S.A., 
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 
(1984).\29\
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    \29\ See id. at *2, *15.
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1. Language and Structure of the CARES Act

    As the OLC opinion explains, the Department's reading of the CARES 
Act is grounded in the language of the relevant provision, section 
12003(b)(2).\30\ That section makes a single change to the Bureau's 
home confinement authority--to allow the Director to ``lengthen'' the 
duration for which prisoners can be placed in home confinement relative 
to the maximum time periods set forth in 18 U.S.C. 3624(c)(2).\31\ Once 
the Director has lengthened a prisoner's amount of time in home 
confinement under the CARES Act and placed the prisoner in home 
confinement, no further action under the CARES Act is needed. After the 
placement is made, the Bureau's ongoing management of the inmate is 
further authorized by other Federal statutes.\32\ The CARES Act does 
not mandate that any period of home confinement lengthened during the 
covered emergency period must end after the expiration of that period.
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    \30\ See id. at *7-9.
    \31\ CARES Act sec. 12003(b)(2), 134 Stat. at 516.
    \32\ See 18 U.S.C. 3621(a), (b).
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    This view is reinforced by the structure of the CARES Act, and 
particularly by a comparison of section 12003(b)(2) with the section of 
the CARES Act that immediately follows it. That section, 12003(c)(1), 
provides that:

    During the covered emergency period, if the Attorney General 
finds that emergency conditions will materially affect the 
functioning of the Bureau, the Director of the Bureau shall 
promulgate rules regarding the ability of inmates to conduct 
visitation through video teleconferencing and telephonically, free 
of charge to inmates, during the covered emergency period.\33\
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    \33\ CARES Act sec. 12003(c)(1), 134 Stat. at 516.

    This section differs from section 12003(b)(2) in important ways. It 
uses the term ``covered emergency period'' twice, at the beginning and 
the end of the section. The first use establishes that the authority of 
the Bureau of Prisons to promulgate rules about video and telephonic 
visitations exists during the covered emergency period. The second use 
refers to the requirement that the Bureau provide such services, free 
of charge, and suggests that these services were required to be 
provided only during the covered emergency period. In comparison, 
section 12003(b)(2) uses the term ``covered emergency period'' at the 
beginning of the section only, referring to the time period during 
which the Director may ``lengthen'' a term of home confinement. Section 
12003(b)(2) ends with the phrase ``as the Director determines 
appropriate,'' which explicitly delegates authority to the Director to 
determine the appropriate amount to lengthen a period of home 
confinement.
    For all of these reasons, and for the additional reasons the 
operative OLC opinion explains in more detail, the Department believes 
that the best reading of the CARES Act is that an inmate whose period 
of home confinement the Director properly lengthened during the covered 
emergency period may remain in home confinement, at the Director's 
discretion, including after the covered emergency period ends.
2. OLC's Previous Opinion
    The Department recognizes that OLC previously advised, in January 
2021, that the Bureau would be required to recall all prisoners placed 
in home confinement under the CARES Act who were not otherwise eligible 
for home confinement under 18 U.S.C. 3624(c)(2) after the expiration of 
the covered emergency period (or if the Attorney General were to revoke 
his findings).\34\ At the time of this previous opinion, the Bureau was 
of the view that the consequences of its proper exercise of discretion 
to lengthen the maximum period of home confinement during the covered 
emergency period could continue after the expiration of the COVID-19 
emergency.\35\ Even after OLC issued this initial opinion, the Bureau's 
view remained that the stronger interpretation of the CARES Act did not 
require all prisoners in CARES Act home confinement to be returned to 
secure facilities at the end of the covered emergency period.\36\
---------------------------------------------------------------------------

    \34\ See Home Confinement of Federal Prisoners After the COVID-
19 Emergency, 45 Op. O.L.C. __(Jan. 15, 2021), available at https://www.justice.gov/olc/file/1355886/download.
    \35\ See id. at *4.
    \36\ See Home-Confinement, 45 Op. O.L.C. __, at *2, *5-7.
---------------------------------------------------------------------------

    The January 2021 OLC opinion based its conclusion on three 
principal determinations.\37\ First, it found that because Congress 
passed the CARES Act to provide various forms of temporary relief, the 
Act was best read to limit its effects to the covered emergency period. 
Second, it reasoned that Congress must have defined the covered 
emergency period to extend 30 days beyond the end of the declared 
national emergency in order to provide the Bureau with time to return 
prisoners to secure custody. And third, it reasoned that the authority 
``to place'' a prisoner in home confinement required the exercise of 
ongoing legal authority due to the Bureau's frequent interactions with 
inmates in home confinement, and that authority would not exist after 
the expiration of the covered emergency period.
---------------------------------------------------------------------------

    \37\ See id. at *4-5.
---------------------------------------------------------------------------

    But upon the Attorney General's further review of the statutory 
language, and in the face of a growing body of evidence demonstrating 
the success of CARES Act home confinement placements, the Attorney 
General requested that OLC reconsider its earlier opinion. During the 
course of this reconsideration, the Bureau provided OLC with additional 
materials supporting its consistent interpretation of the CARES Act. 
The Bureau also explained that home confinement decisions have 
historically been made on an individualized basis, which serves 
penological goals. OLC reexamined the relevant text, structure, 
purpose, and legislative history, along with the Bureau's additional 
materials demonstrating its consistent analysis of its own authority, 
and concluded the stronger interpretation of section 12003(b)(2) was 
not to require the wholesale return of CARES Act inmates to secure 
custody.
    As noted above, see supra Part C.1, the current OLC opinion 
explains the textual basis for this view, including the absence of a 
statutory limit on the length of CARES Act home-confinement placements 
and the contrast between CARES Act sections 12003(b)(2) and 
12003(c)(1). But the current opinion also explains the rationale 
underlying its

[[Page 36792]]

departure from the three principal determinations upon which the 
January 2021 OLC opinion was grounded. First, OLC recognized that the 
temporary nature of many programs created by the CARES Act does not 
require that extended home confinement placements must end along with 
the covered emergency period for two reasons.\38\ As an initial matter, 
the extended home confinement program is time-limited: the Director's 
authority to place inmates on extended home confinement lapses after 
the expiration of the covered emergency period. In addition, the 
consequences of temporary CARES Act authorities may extend past the 
emergency period. For example, although the authority to provide loans 
under the CARES Act's Paycheck Protection Program was limited, the 
loans granted pursuant to that authority will mature over time.\39\
---------------------------------------------------------------------------

    \38\ See id. at *12.
    \39\ See CARES Act sec. 1102, 134 Stat. at 286-97; id. at sec. 
1109, 134 Stat. at 304-06.
---------------------------------------------------------------------------

    Second, OLC did not interpret the 30-day grace period following the 
end of the national emergency as necessarily suggesting that Congress 
intended the Bureau to use that time to return CARES Act inmates to 
secure custody.\40\ There is no legislative history to support such a 
reading, and there are other plausible explanations for the grace 
period, including broader forms of administrative convenience and 
benefit, such as letting BOP finish processing home-confinement 
placements that were in progress and to which BOP had already devoted 
resources. Moreover, the 30-day grace period also applies to section 
12003(c), which provides for free video and teleconferencing for 
inmates during the covered emergency period. This undercuts the 
rationale that Congress included the 30-day grace period for any 
particular reason other than administrative convenience.
---------------------------------------------------------------------------

    \40\ See Home-Confinement Placements, 45 Op. O.L.C. __, at *11-
12.
---------------------------------------------------------------------------

    Finally, OLC concluded that the appropriate action to focus on in 
determining the meaning of section 12003(b)(2) is the authority to 
``lengthen'' the maximum period of home confinement, which is a 
discrete act.\41\ The term ``to place'' derives from a different 
statute--18 U.S.C. 3624(c)(2)--and even assuming the act of 
``placement'' involves an ongoing process, the Bureau fully completes 
the act of ``lengthening'' the time for which an individual may be 
placed in home confinement under the CARES Act when an inmate is 
transferred to home confinement under the Act. Once the Bureau has 
appropriately lengthened an inmate's maximum period of home confinement 
under the CARES Act, sections 3624(c)(2), 3621(a), and 3621(b) provide 
the Bureau with ongoing authority to manage that placement.
---------------------------------------------------------------------------

    \41\ See id. at *7-9.
---------------------------------------------------------------------------

    This proposed rule accords with OLC's revised views and codifies 
the Director's authority to allow inmates placed in home confinement 
under the CARES Act to remain in home confinement after the end of the 
covered emergency period.
3. Chevron Deference
    Even if section 12003(b)(2) of the CARES Act were found to be 
ambiguous, the Department believes its view would be entitled to 
deference as a reasonable reading of a statute it administers. Under 
Chevron, if a court concludes that such a statute is ambiguous--a 
determination typically referred to as Chevron step one--it must defer 
to the agency's interpretation as long as it is ``based on a 
permissible construction of the statute'' under Chevron step two. 
Chevron, 467 U.S. at 843.
    At the outset, the Department has authority to promulgate rules to 
manage the Bureau of Prisons, and to administer CARES Act section 
12003(b)(2). Congress vested the Attorney General with broad control 
over the ``control and management of Federal penal and correctional 
institutions'' and the ability to ``promulgate rules for the government 
thereof.'' \42\ Congress also delegated general authority to the heads 
of executive departments, including the Attorney General, to issue 
regulations for the ``government of [the] department, the conduct of 
its employees, [and] the distribution and performance of its 
business.'' \43\ Congress plainly intended the Department to use its 
discretion, drawing on the expertise of the Attorney General and the 
Director, to administer section 12003(b)(2) of the CARES Act. First, 
that section empowers the Attorney General to make a finding, during 
the pandemic emergency, that the pandemic has materially affected the 
functioning of the Bureau. Second, the Attorney General's finding, in 
turn, triggers the Director's discretion to lengthen the maximum amount 
of time an inmate may be placed in home confinement, ``as the Director 
determines appropriate.'' \44\ This proposed rule, which codifies the 
Department's understanding of its authority under the CARES Act in 
furtherance of the management of Bureau institutions, is issued 
pursuant to these authorities and, when finalized, is intended to have 
the force of law.
---------------------------------------------------------------------------

    \42\ 18 U.S.C. 4001(b)(1).
    \43\ 5 U.S.C. 301.
    \44\ CARES Act sec. 12003(b)(2), 134 Stat. 516.
---------------------------------------------------------------------------

    Although the Department believes its understanding of CARES Act 
section 12003(b)(2) is the best reading of the statute for the reasons 
explained above, were a court to disagree and find the statute unclear, 
the Department's interpretation would be reasonable for those same 
reasons and the additional reasons explained below. As has already been 
discussed, the Department's interpretation of the CARES Act is aligned 
with the relevant statutory language, structure, purpose, and history. 
The Department's interpretation is also consistent with congressional 
action demonstrating an interest in increasing the Bureau's use of home 
confinement. It is in the best operational interests of the Bureau and 
the institutions it manages. And it is in the best penological 
interests of affected inmates. For these additional reasons, detailed 
further below, if the statute is deemed ambiguous, the Department's 
interpretation of section 12003(b)(2) represents a reasonable exercise 
of the Attorney General's and the Director's policy discretion that 
would be entitled to deference.

D. Congressional Intent

    The Department's interpretation of the CARES Act is consistent with 
bipartisan legislation signaling Congress's interest in expanding the 
use of home confinement and placing inmates in home confinement for 
longer periods of time. Such legislative efforts have been part of 
Congress's broader push to manage prison populations, facilitate 
inmates' successful reentry into communities, and reduce recidivism 
risk.\45\ These efforts were undertaken over years of bipartisan 
negotiations and garnered broad support across the political spectrum, 
beginning with the Second Chance Act of 2007 and

[[Page 36793]]

continuing in the First Step Act of 2018.\46\
---------------------------------------------------------------------------

    \45\ See, e.g., H.R. Rep. No. 115-699, at 22-24 (2018) (``The 
federal prison system needs to be reformed through the 
implementation of corrections policy reforms designed to enhance 
public safety by improving the effectiveness and efficiency of the 
federal prison system in order to control corrections spending, 
manage the prison population, and reduce recidivism.''); H.R. Rep. 
No. 110-140, at 1-5 (2007) (``The Second Chance Act will strengthen 
overall efforts to reduce recidivism, increase public safety, and 
help States and communities to better address the growing population 
of ex-offenders returning to their communities. The bill focuses on 
development and support of programs that provide alternatives to 
incarceration, expand the availability of substance abuse treatment, 
strengthen families, and expand comprehensive re-entry services. The 
bill is a product of multi-year bipartisan negotiations and enjoys 
support from across the political spectrum.'').
    \46\ The House of Representatives passed the Second Chance Act 
by a vote of 347 to 62, and the Senate passed the Act without 
amendment by unanimous consent. See H.R. 1593--Second Chance Act of 
2007, Congress.gov, available at https://www.congress.gov/bill/110th-congress/house-bill/1593/actions?r=5&s=5 (last visited Apr. 
28, 2022). The House of Representatives passed the First Step Act by 
a vote of 358 to 36, and the Senate passed the Act by a vote of 87 
to 12. See S. 756--First Step Act of 2018, Congress.gov, available 
at https://www.congress.gov/bill/115th-congress/senate-bill/756/actions?r=6&s=9 (last visited Apr. 28, 2022).
---------------------------------------------------------------------------

    In the SCA, Congress increased the Bureau's discretion to place 
inmates in home confinement in two ways. First, it instructed the 
Director to ensure, to the extent practicable, that a prisoner spends a 
portion of the final months of her term of imprisonment in conditions 
designed to prepare her for reentry into the community, including 
community correctional facilities, and explicitly provided the Director 
with discretion to place inmates in home confinement for a period not 
to exceed the last six months or 10 percent of their terms of 
imprisonment.\47\ Second, the SCA established a pilot program to allow 
the Bureau to place eligible non-violent elderly offenders in home 
confinement for longer periods.
---------------------------------------------------------------------------

    \47\ SCA, Public Law 110-199, sec. 251(a), 122 Stat. 657, 692-93 
(2008).
---------------------------------------------------------------------------

    Congress further expanded the Bureau's use of home confinement 
through the FSA in three contexts. First, the FSA demonstrated 
Congress's interest in increasing the amount of time low-risk offenders 
spend in home confinement, while continuing to leave decisions about 
individual prisoners to the Bureau's discretion, by providing that 
``[t]he Bureau of Prisons shall, to the extent practicable, place 
prisoners with lower risk levels and lower needs on home confinement 
for the maximum amount of time permitted under [18 U.S.C. 
3624(c)(2)].'' \48\ Second, the FSA reauthorized and expanded the pilot 
program to place eligible elderly offenders in home confinement by 
lowering the age requirement from 65 to 60 years old, reducing the 
amount of the sentence imposed an inmate must have served to qualify 
for the program, and allowing it to be applied to eligible terminally 
ill inmates regardless of age.\49\ Third, the FSA created an incentive 
for eligible inmates to participate in programs shown to reduce their 
risk of recidivism by allowing individuals to earn time credits, which 
may be used for earlier transfer to prerelease custody, including home 
confinement, notwithstanding the time limits included in 18 U.S.C. 
3624(c)(2).\50\ The statute provides that an inmate placed in home 
confinement under this incentive program ``shall remain in home 
confinement until the prisoner has served not less than 85 percent of 
the prisoner's imposed term of imprisonment,'' and that the Bureau 
should provide progressively less restrictive conditions on inmates who 
demonstrate continued compliance with the conditions of prerelease 
custody.\51\
---------------------------------------------------------------------------

    \48\ FSA sec. 602, 132 Stat. 5238.
    \49\ Id. sec. 603(a), 132 Stat. 5238.
    \50\ Id. sec. 101, 132 Stat. at 5198, codified in relevant part 
at 18 U.S.C. 3632(d); id. at sec. 102, 132 Stat. 5210-13, codified 
at 18 U.S.C. 3624(g).
    \51\ See 18 U.S.C. 3624(g)(2)(A)(iv), (g)(4).
---------------------------------------------------------------------------

    Although the CARES Act was a response to the emergency conditions 
presented by the COVID-19 pandemic, Congress's expansion of the 
Bureau's home confinement authority as part of that response is 
consistent with its recent and clear indication of support for 
expanding the use of home confinement based on the needs of individual 
offenders. These indications of congressional intent further bolster 
the Department's view that any ambiguity in the CARES Act should be 
read to provide the Director with discretion to allow inmates placed in 
home confinement who have been successfully serving their sentences in 
the community to remain there, rather than return such inmates to 
secure custody en masse without making an individualized assessment or 
identifying a penological, rehabilitative, public health, or public 
safety basis for the action. As explained below, in the Bureau's expert 
assessment, whether an inmate should remain in home confinement is a 
decision best made upon careful consideration of the appropriate 
management of Bureau institutions, penological, rehabilitative, public 
health, and public safety goals, and the totality of the circumstances 
of individual offenders.

E. Operational Benefits

    Allowing certain inmates who were placed in home confinement under 
the CARES Act to remain in home confinement after the expiration of the 
covered emergency period will also afford a number of operational 
benefits. These benefits include operational flexibility in managing 
BOP-operated institutions and cost savings for the Bureau. It is 
further supported by evidence demonstrating that the Bureau can 
appropriately manage public safety concerns related to inmates in home 
confinement, and by the penological, rehabilitative, public health, 
public safety, and societal benefits of allowing inmates to effectively 
prepare for successful reentry after the conclusion of their criminal 
sentences. Finally, this interpretation permits the Bureau to take into 
account whether returning CARES Act inmates to secure custody, thereby 
increasing populations in BOP facilities, risks new, potentially 
serious COVID-19 outbreaks in prisons even after the broader national 
emergency has passed.
    One of the vital tools in operating a correctional system is the 
ability to effectively manage bedspace based on the needs of the 
offender, security requirements, and agency resources. Congress has 
explicitly provided the Bureau responsibility for maintaining custody 
of Federal inmates \52\ and discretion to designate the place of those 
inmates' imprisonment.\53\ Courts have recognized the Bureau's 
authority to administer inmates' sentences,\54\ supporting this 
management principle. The Bureau's ability to control populations in 
BOP-operated institutions as well as, where appropriate, in the 
community, allows the Bureau flexibility to respond to circumstances as 
varied as increased prosecutions or responses to local or national 
emergencies or natural disasters. Providing the Bureau with discretion 
to determine whether any inmate placed in home confinement under the 
CARES Act should return to secure custody will increase the Bureau's 
ability to respond to outside circumstances and manage its resources in 
an efficient manner that considers both public safety and the needs of 
individual inmates.
---------------------------------------------------------------------------

    \52\ 18 U.S.C. 3621(a) (``A person who has been sentenced to a 
term of imprisonment . . . shall be committed to the custody of the 
Bureau of Prisons until the expiration of the term imposed . . . 
.'').
    \53\ See 18 U.S.C. 3621(b) (providing that ``[t]he Bureau of 
Prisons shall designate the place of the prisoner's imprisonment,'' 
taking into account factors such as facility resources; the offense 
committed; the inmate's history and characteristics; recommendations 
of the sentencing court; and any pertinent policy of the United 
States Sentencing Commission). Section 3621(b) also authorizes the 
Bureau to direct the transfer of a prisoner at any time, subject to 
the same individualized assessment. See id.
    \54\ See, e.g., United States v. Wilson, 503 U.S. 329, 335 
(1992); Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir. 
2016).
---------------------------------------------------------------------------

    Supervision of inmates in home confinement is also significantly 
less costly for the Bureau than housing inmates in secure custody. In 
Fiscal Year (FY) 2019, the cost of incarceration fee (COIF) for a 
Federal inmate in a Federal facility was $107.85 per day; in FY 2020, 
it was $120.59 per day.\55\ In contrast, according to the Bureau, an 
inmate in home confinement costs an

[[Page 36794]]

average of $55 per day--less than half of the cost of an inmate in 
secure custody in FY 2020. Although the Bureau's decision to place an 
inmate in home confinement is based on many factors, where the Bureau 
deems home confinement appropriate, that decision has the added benefit 
of reducing the Bureau's expenditures. Such cost savings were among the 
intended benefits of the First Step Act.\56\
---------------------------------------------------------------------------

    \55\ Annual Determination of Average Cost of Incarceration Fee 
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
    \56\ See, e.g., H.R. Rep. No. 115-699, at 22-24 (``The federal 
prison system needs to be reformed through the implementation of 
corrections policy reforms designed to enhance public safety by 
improving the effectiveness and efficiency of the federal prison 
system in order to control corrections spending, manage the prison 
population, and reduce recidivism.'').
---------------------------------------------------------------------------

    As the extremely low percentage of inmates placed on CARES Act home 
confinement returned to secure custody shows, the Bureau can 
effectively manage public safety concerns associated with the low-risk 
inmates placed in home confinement under the CARES Act for longer 
periods of time. Indeed, of the nearly 5,000 inmates placed in home 
confinement under the CARES Act, as of January 8, 2022, only 322 had 
been returned to secure custody for any reason, and only eight for 
committing a new crime. Individuals placed in home confinement under 
the CARES Act, like other inmates in home confinement, remain in the 
custody of the Bureau. Before being placed in home confinement, inmates 
sign agreements which require consent to submit to home visits and drug 
and alcohol testing, acknowledgement of monitoring requirements, and an 
affirmation that they will not engage in criminal behavior or possess 
firearms. Under these agreements, individuals placed in home 
confinement are subject to electronic monitoring; check-in 
requirements; drug and alcohol testing; and transfer back to secure 
correctional facilities for any significant disciplinary infractions or 
violations of the agreement.\57\ CARES Act inmates who remain in home 
confinement after the covered emergency period would continue to be 
subject to these requirements until the end of their sentences, and 
possibly into a term of supervised release. Data show that these 
procedures have been working to preserve public safety where inmates 
were placed on extended home confinement under the CARES Act, and the 
Department expects that such measures will continue to be effective 
after the end of the covered emergency period.\58\ Thus, in the 
Department's view, the aspects of a criminal sentence that preserve 
public safety can be managed in this context while also allowing 
individuals to more effectively prepare for life when their criminal 
sentences conclude.
---------------------------------------------------------------------------

    \57\ See Federal Bureau of Prisons Program Statement 7320.01, 
CN-2, Home Confinement (updated Dec. 15, 2017), available at https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf.
    \58\ Previous research has similarly shown that inmates can 
maintain accountability in home confinement programs. See, e.g., 
Darren Gowen, Overview of the Federal Home Confinement Program 1988-
1996, 64 Fed. Prob. 11, 17 (2000) (finding that 89 percent of 17,000 
individuals placed in home confinement between 1988 and 1996 
successfully completed their terms without incident). In addition, 
studies have found that efforts to decarcerate prisons in other 
contexts, which were not limited to home confinement measures, did 
not harm public safety. See, e.g., Jody Sundt et al., Is Downsizing 
Prisons Dangerous? The Effect of California's Realignment Act on 
Public Safety, 15 Criminology & Pub. Policy 315 (2016).
---------------------------------------------------------------------------

    Congress has demonstrated through the passage of the SCA and the 
FSA an increasing interest in appropriately preparing inmates for 
reintegration into society, and an ongoing reevaluation of the societal 
benefits of incarceration versus non-custodial rehabilitative 
programs.\59\ Home confinement provides penological benefits as one of 
the last steps in a reentry program. An inmate would usually be moved 
over the course of a sentence to progressively less secure conditions 
of confinement--often from a secure prison, to a residential reentry 
center, to home confinement--to provide transition back into the 
community with support, resources, and supervision from the agency.\60\ 
Under typical circumstances, inmates who have made the transition to 
home confinement would not be returned to a secure facility absent a 
disciplinary reason, because the purpose of home confinement is to 
allow inmates to readjust to life in the community. Removal from the 
community would therefore frustrate this goal. And the widespread 
return of prisoners to secure custody without a disciplinary reason 
would be unprecedented. Moreover, as findings in the SCA indicate, 
inmates who are provided the types of benefits home confinement can 
afford, such as opportunities to rebuild ties to family and to return 
to the workplace and to the community, may ultimately be less likely to 
recidivate.\61\ Although placements under the CARES Act were not made 
for reentry purposes, the best use of Bureau resources and the best 
outcome for affected offenders is to allow the agency to make 
individualized assessments of CARES Act placements with a focus on 
inmates' eventual reentry into the community. Allowing the Bureau 
discretion to determine whether inmates who have been successfully 
serving their sentences in the community should remain in home 
confinement will allow the Bureau to ground those decisions upon case-
by-case assessments consistent with penological, rehabilitative, public 
health, and public safety goals, rather than categorically requiring 
all inmates placed on CARES Act home confinement to be treated the 
same.\62\
---------------------------------------------------------------------------

    \59\ See, e.g., H.R. Rep. No. 115-699, at 22-24; SCA sec. 3(a), 
122 Stat. at 658 (``The purposes of the Act are . . . to rebuild 
ties between offenders and their families, while the offenders are 
incarcerated and after reentry into the community, to promote stable 
families and communities; . . . to encourage the development and 
support of, and to expand the availability of, evidence-based 
programs that enhance public safety and reduce recidivism, such as 
substance abuse treatment, alternatives to incarceration, and 
comprehensive reentry services . . . .'').
    \60\ Congress demonstrated support for this type of logical 
progression toward reentry in the First Step Act. See FSA sec. 101, 
132 Stat. 5212, codifed at 18 U.S.C. 3624(g)(4) (``In determining 
appropriate conditions for prisoners placed in prerelease custody 
pursuant to this subsection, the Director of the Bureau of Prisons 
shall, to the extent practicable, provide that increasingly less 
restrictive conditions shall be imposed on prisoners who demonstrate 
continued compliance with the conditions of such prerelease custody, 
so as to most effectively prepare such prisoners for reentry.'').
    \61\ See SCA sec. 3(b), 122 Stat. 658-60 (``According to the 
Bureau of Prisons, there is evidence to suggest that inmates who are 
connected to their children and families are more likely to avoid 
negative incidents and have reduced sentences. . . . Released 
prisoners cite family support as the most important factor in 
helping them stay out of prison. . . . Transitional jobs programs 
have proven to help people with criminal records to successfully 
return to the workplace and the community, and therefore can reduce 
recidivism.'').
    \62\ Such individualized assessments are consistent with 
direction the Bureau has received from Congress in other contexts. 
For example, Congress has made clear that the Bureau must base its 
determination of an inmate's place of imprisonment on an 
individualized assessment that takes into account factors including 
the inmate's history and characteristics. See 18 U.S.C. 3621(b).
---------------------------------------------------------------------------

    Finally, the Bureau needs flexibility to consider whether continued 
home confinement for CARES Act inmates is in the interest of the public 
health, and whether reintroduction of CARES Act inmates into secure 
facilities would create the risk of new outbreaks of COVID-19 among the 
prison population--even after the conclusion of the broader pandemic 
emergency. It is now well established that congregate living settings, 
and correctional facilities in particular, heighten the risk of COVID-
19 spread due to multiple factors.\63\ Data have shown that

[[Page 36795]]

increased crowding in prisons, which makes social distancing difficult, 
is associated with increased incidence of COVID-19.\64\ Although COVID-
19 vaccines are widely available and effective at preventing infection, 
serious illness, and death, not all incarcerated persons will elect to 
receive COVID-19 vaccinations,\65\ and breakthrough infections may 
occur even in fully vaccinated persons, who are then able to spread the 
disease.\66\ More contagious variants of the virus that causes COVID-19 
could exacerbate the spread, and it is unknown whether currently 
available vaccines will be effective against new variants that may 
arise. Accordingly, it is appropriate for the Department to consider 
whether the reintroduction into prison populations of individuals 
placed in home confinement, in part, upon consideration of their 
vulnerability to COVID-19 \67\ and the resulting increased crowding in 
prison settings could lead to new COVID-19 outbreaks, including 
breakthrough cases in fully vaccinated inmates and infections in the 
most vulnerable prisoners.
---------------------------------------------------------------------------

    \63\ See, e.g., CDC, For People Living in Prisons and Jails 
(updated Feb. 15, 2022), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/living-prisons-jails.html (last visited Apr. 29, 2022); Nat'l Academies of 
Sciences, Engineering, and Medicine, Decarcerating Correctional 
Facilities during COVID-19: Advancing Health, Equity, and Safety 23-
44 (2020), available at https://doi.org/10.17226/25945 (last visited 
Apr. 29, 2022).
    \64\ Abigail I. Leibowitz et al., Association Between Prison 
Crowding and COVID-19 Incidence Rates in Massachusetts Prisons, 
April 2020-January 2021, 181 JAMA Internal Med. 1315 (2021); see 
also Nat'l Academies of Sciences, Engineering, and Medicine, 
Decarcerating Correctional Facilities during COVID-19: Advancing 
Health, Equity, and Safety 26-27 (2020), available at https://doi.org/10.17226/25945 (last visited Apr. 29, 2022).
    \65\ Early studies demonstrated that around 64 percent of 
persons incarcerated in BOP institutions who were offered COVID-19 
vaccinations accepted them. See Liesl M. Hagan et al., COVID-19 
vaccination in the Federal Bureau of Prisons, December 2020-April 
2021, 39 Vaccine 5883 (2021).
    \66\ CDC, The Possibility of COVID-19 after Vaccination: 
Breakthrough Infections (updated Dec. 17, 2021), available at 
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html (last visited Apr. 
29, 2022).
    \67\ See Memorandum for the Director, Bureau of Prisons from the 
Attorney General, Re: Prioritization of Home Confinement As 
Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020), 
available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf (directing the Bureau to consider, 
among other discretionary factors, ``the age and vulnerability of 
[an] inmate to COVID-19'' when assessing which inmates should be 
placed in home confinement).
---------------------------------------------------------------------------

    For all of these reasons, the Department believes that it is not 
only statutorily authorized, but also operationally appropriate for the 
Director to have the discretion to allow individuals placed in home 
confinement under the CARES Act to remain in home confinement after the 
end of the covered emergency period. Following the issuance of a final 
rule, the Bureau will develop, in consultation with the Department, 
guidance to explain criteria that it will use to make individualized 
determinations as to whether any inmate placed in home confinement 
under the CARES Act should be returned to secure custody.

III. Regulatory Certifications

A. Regulatory Flexibility Act

    The Attorney General, under the Regulatory Flexibility Act (5 
U.S.C. 605(b)), reviewed this proposed rule 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 
regulation 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.

B. Executive Orders 12866 and 13563

    This proposed rule has been drafted and reviewed in accordance with 
section 1(b) of Executive Order 12866 (Regulatory Planning and Review) 
and section 1(b) of Executive Order 13563 (Improving Regulation and 
Regulatory Review).
    This proposed 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 because it may raise novel legal or policy issues arising out of 
implementation of section 12003(b)(2) of the CARES Act and, 
accordingly, it was reviewed by OMB.
    The Department has assessed the costs and benefits of this 
rulemaking as required by Executive Order 12866 section 1(b)(6) and has 
made a reasoned determination that the benefits of this rulemaking 
justify its costs.
    The economic impact of this proposed rule is limited to a specific 
subset of inmates who were placed in home confinement pursuant to the 
CARES Act and are not otherwise eligible for home confinement at the 
end of the covered emergency period. As of January 10, 2022, 4,902 
inmates had been placed in home confinement under the CARES Act; 2,826 
of those inmates had release dates in more than 12 months. The 
Department expects these numbers will continue to fluctuate as inmates 
continue to serve their sentences and the Bureau continues to conduct 
individualized assessments to make home confinement placements under 
the CARES Act for the duration of the covered emergency period.
    The Bureau has realized significant cost savings by placing 
eligible inmates in home confinement under the CARES Act relative to 
housing those inmates in secure facilities, and it expects those cost 
savings to continue for inmates who remain in home confinement under 
the CARES Act following the end of the covered emergency period. 
Although the Bureau has not yet published the average cost of 
incarceration fees (COIF) for Fiscal Year (FY) 2021, in FY 2020 the 
average COIF for a Federal inmate in a Federal facility was $120.59 per 
day.\68\ The average cost for an inmate in home confinement was $55 per 
day, representing a cost savings of approximately $65.59 per day, per 
inmate, or approximately $23,940.35 per year, per inmate. Although the 
numbers will likely differ for FY 2021 and beyond, the Department and 
the Bureau expect that the proposed rule will benefit them as a result 
of the avoidance of costs the Bureau would otherwise expend to confine 
the affected inmates in secure custody. Because the affected inmates 
are currently serving their sentences in home confinement, there will 
be no new costs associated with this proposed rulemaking.
---------------------------------------------------------------------------

    \68\ Annual Determination of Average Cost of Incarceration Fee 
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
---------------------------------------------------------------------------

    As explained above, the proposed rule will also have operational, 
penological, and health benefits. These include increasing the Bureau's 
ability to control inmate populations in BOP facilities and in the 
community, allowing it to be responsive to changed circumstances; 
empowering the Bureau to make individualized assessments as to whether 
inmates placed in home confinement should remain in home confinement 
after the end of the covered emergency period, taking into account, for 
example, penological goals and the benefits associated with an inmate 
establishing family connections and finding employment opportunities in 
the community; and allowing the Bureau to weigh the ongoing risk of new 
COVID-19 outbreaks in BOP facilities against the benefit of returning 
any inmate to secure custody.
    The Department has determined that there is no countervailing risk 
to the public safety that outweighs the benefits of this rulemaking. 
The percentage of inmates placed in home confinement under the CARES 
Act that have had to be returned to secure custody for any violation of 
the rules of home confinement is very low; the number of inmates who 
were returned as a result of new criminal activity is a fraction of 
that. The vast majority of inmates on CARES Act home confinement have 
complied with the terms of the program and have been successfully 
serving their sentences in the community. Thus, in

[[Page 36796]]

the Department's assessment, public safety considerations do not 
undercut the benefits associated with allowing inmates placed in home 
confinement under the CARES Act to remain in home confinement after the 
expiration of the covered emergency period.
    Other potential costs relate to inmates serving longer sentences in 
home confinement as a result of the CARES Act. These inmates might lose 
the opportunity to participate in potentially beneficial programming 
and treatment offered only in BOP facilities, which they might have 
otherwise taken advantage of if placed in secure custody. In addition, 
most sentencing courts anticipated that offenders would be incarcerated 
in a secure facility, and there may be concern that placing inmates in 
home confinement for longer periods might not appropriately honor the 
intent of the courts, the interests of prosecuting United States 
Attorney's Offices,\69\ any impact on victims or witnesses, possible 
deterrence effects in the community, or other aspects of the agency's 
mission. These costs are all mitigated, however, by retaining the 
Director's discretion to determine whether any inmate should be 
returned to secure custody based on an individualized assessment. The 
Department and the Bureau will consider the factors referenced in this 
paragraph when developing common criteria to govern these case-by-case 
assessments, thereby promoting operational efficiency and equitable 
treatment of offenders.
---------------------------------------------------------------------------

    \69\ The Bureau, in its discretion, forwards certain home 
confinement cases to the prosecuting United States Attorney's Office 
for the input of prosecutors, taking any objections into account 
when approving or denying those cases.
---------------------------------------------------------------------------

D. Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice 
Reform).

E. Executive Order 13132 (Federalism)

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the Federal Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, under Executive Order 13132, 
the Attorney General determines that this proposed regulation does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

F. Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation) in 
any one year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions are necessary under the provisions 
of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

G. Congressional Review Act

    This proposed rule is not a major rule as defined by the 
Congressional Review Act, 5 U.S.C. 804.

H. Paperwork Reduction Act of 1995

    This proposed rule does not impose any new reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501-3521.

List of Subjects in 28 CFR Part 0

    Authority delegations (Government agencies), Government employees, 
National defense, Organization and functions (Government agencies), 
Privacy, Reporting and recordkeeping requirements, Whistleblowing.

    Accordingly, by virtue of the authority vested in me as Attorney 
General, including 5 U.S.C. 301, 18 U.S.C. 4001 and 28 U.S.C. 509, 510, 
part 0 of title 28 of the Code of Federal Regulations is proposed to be 
amended as follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

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

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

0
2. In Sec.  0.96, add paragraph (u) to read as follows:


Sec.  0.96  Delegations.

* * * * *
    (u) With respect to the authorities granted under the Coronavirus 
Aid, Relief, and Economic Security (CARES) Act (Pub. L. 116-136):
    (1) During the ``covered emergency period'' as defined by the CARES 
Act, when the Attorney General determines that emergency conditions 
will materially affect the functioning of the Bureau of Prisons 
(Bureau), lengthening the maximum amount of time for which the Director 
is authorized to place a prisoner in home confinement under 18 U.S.C. 
3624(c)(2), as the Director determines appropriate.
    (2) After the expiration of the ``covered emergency period'' as 
defined by the CARES Act, permitting any prisoner placed in home 
confinement under the CARES Act who is not yet otherwise eligible for 
home confinement under separate statutory authority to remain in home 
confinement under the CARES Act for the remainder of her sentence, as 
the Director determines appropriate.
    (3) This section concerns only inmates placed in home confinement 
under the CARES Act. It has no effect on any other inmate, including 
those placed in home confinement under separate statutory authorities.

    Dated: June 14, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-13217 Filed 6-17-22; 8:45 am]
BILLING CODE 4410-05-P