[Federal Register Volume 88, Number 64 (Tuesday, April 4, 2023)]
[Rules and Regulations]
[Pages 19830-19840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07063]



[[Page 19830]]

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DEPARTMENT OF JUSTICE

28 CFR Part 0

[BOP Docket No. 1179; AG Order No. 5641-2023]
RIN 1120-AB79


Office of the Attorney General; Home Confinement Under the 
Coronavirus Aid, Relief, and Economic Security (CARES) Act

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

ACTION: Final 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. The Department of Justice (``Department'' or 
``DOJ'') promulgates this final rule to affirm that the Director has 
the authority and discretion 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: This rule is effective May 4, 2023.

FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant 
General Counsel, Federal Bureau of Prisons, (202) 353-4885.

SUPPLEMENTARY INFORMATION: 

I. Overview

    In this document, the Department promulgates a final rule 
(``rule'') granting the Director the authority and discretion to allow 
prisoners placed in home confinement under the CARES Act to remain in 
home confinement after the expiration of the covered emergency period. 
The Department published a proposed rule on this subject on June 21, 
2022 (87 FR 36787), with a comment deadline of July 21, 2022.

II. Background \1\
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    \1\ For a more detailed discussion of the overview and 
background of CARES Act home confinement, see Sections II.A. and 
II.B. of the preamble to the proposed rule. 87 FR 36788-95.
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    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.\2\ COVID-19 is caused by an extremely 
contagious virus known as SARS-CoV-2 that has spread quickly around the 
world.\3\ 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.\4\ Individuals in close contact 
with an infected person--generally less than six feet apart--are most 
likely to get infected. Although COVID-19 often presents with mild 
symptoms, some people become severely ill and die. Older adults and 
individuals with underlying medical conditions are at increased risk of 
severe illness.\5\
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    \2\ Proclamation 9994, Declaring a National Emergency Concerning 
the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 
18, 2020).
    \3\ U.S. Centers for Disease Control and Prevention, Basics of 
COVID-19 (last updated Nov. 4, 2021), https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html.
    \4\ U.S. Centers for Disease Control and Prevention, How COVID-
19 Spreads (last updated Aug. 11, 2022), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.
    \5\ U.S. Centers for Disease Control and Prevention, Basics of 
COVID-19 (last updated Nov. 4, 2021), https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html.
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    The U.S. Centers for Disease Control and Prevention (``CDC'') has 
recognized that the COVID-19 pandemic presents unique challenges for 
correctional facilities, such as those the Bureau manages.\6\ 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. Since the earliest days 
of the pandemic, Department and Bureau officials have worked in tandem 
to develop and implement a plan to mitigate the high risk of rapid 
transmission of COVID-19 in the Federal prison system.
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    \6\ CDC, Considerations for Modifying COVID-19 Prevention 
Measures in Correctional and Detention Facilities Webinar Transcript 
(June 22, 2021), https://www.cdc.gov/coronavirus/2019-ncov/videos/covid-19-prevention/Webinar-Transcript-508.pdf.
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    In March 2020, several United States Senators urged the Attorney 
General and the Director to utilize available statutory authorities to 
transfer vulnerable prisoners to home confinement.\7\ Transferring 
these vulnerable prisoners to home confinement would remove them from 
an environment in which contagious viruses thrive due to the inherent 
risks of congregate settings and the unique restrictions that 
correctional custody places on an individual's ability to maintain an 
appropriate social distance, as well as permit them to undertake other 
measures to protect themselves in ways they are not able to do in 
secure custody.
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    \7\ Letter for William P. Barr, Attorney General, and Michael 
Carvajal, Director, BOP, from Senator Richard J. Durbin et al. (Mar. 
23, 2020), 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.
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    The Attorney General issued a memorandum on March 26, 2020, 
instructing the Director to prioritize the 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.\8\ The Attorney 
General directed that the determination of whether to place an inmate 
in home confinement should be made on an individualized basis, 
considering the totality of the inmate's circumstances, statutory 
requirements, and a non-exhaustive list of discretionary factors:
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    \8\ Memorandum for the Director, BOP, from the Attorney General, 
Re: Prioritization of Home Confinement As Appropriate in Response to 
COVID-19 Pandemic (Mar. 26, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf.
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     The age of the inmate and the 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''); \9\
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    \9\ 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., BOP, PATTERN Risk Assessment, https://www.bop.gov/inmates/fsa/pattern.jsp. It was created pursuant to the First Step 
Act of 2018. See Public Law 115-391, sec. 101(a), sec. 3632(a), 132 
Stat. 5194, 5196-97.
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     Whether the inmate had a reentry plan that would help 
prevent recidivism and maximize public safety; and
     The inmate's crime of conviction and the danger the inmate 
would pose to the community.\10\
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    \10\ Memorandum for the Director, BOP, from the Attorney 
General, Re: Prioritization of Home Confinement As Appropriate in 
Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf.
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    The Attorney General's memorandum explained that some offenses 
would

[[Page 19831]]

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.\11\
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    \11\ Memorandum for the Director, BOP, from the Attorney 
General, Re: Prioritization of Home Confinement As Appropriate in 
Response to COVID-19 Pandemic (Mar. 26, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf. This criterion was 
later updated to include low and minimum PATTERN scores. See 
Memorandum for Chief Executive Officers, from Andre Matevousian et 
al., BOP, Re: Home Confinement (Apr. 13, 2021), https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf.
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    On March 27, 2020, the day after the Attorney General's first 
memorandum, the President signed into law the CARES Act,\12\ which 
expanded the Director's authority and discretion to place inmates in 
home confinement in direct response to the COVID-19 pandemic during a 
``covered emergency period.'' In relevant part, the CARES Act provides 
that the ``covered emergency period'' begins the date the President 
declared a national emergency with respect to COVID-19 and ends 30 days 
after the date on which the national emergency terminates.\13\
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    \12\ ``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.'' CARES Act, Public Law 116-136, sec. 
12003(b)(2), 134 Stat. 281, 516 (2020).
    \13\ Id. sec. 12003(a)(2).
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    On April 3, 2020, the Attorney General issued a second memorandum 
to the Director, finding that emergency conditions were materially 
affecting the functioning of the Bureau, and instructing the Director 
to use the expanded home confinement authority provided in the CARES 
Act to place in home confinement the most vulnerable inmates at the 
facilities most affected by COVID-19.\14\ The Bureau subsequently 
issued internal guidance that adopted the criteria in the Attorney 
General's memoranda and prioritized for home confinement inmates who 
had served 50 percent or more of their sentences, or those who had 18 
months or less remaining on their sentences and had served more than 25 
percent of that sentence.\15\ The Bureau later clarified that inmates 
with low or minimum PATTERN scores would qualify equally for home 
confinement, and that the factors assessed to ensure inmates were 
suitable for home confinement included verifying that an inmate's 
current or prior offense was not violent, not a sex offense, and not 
terrorism-related.\16\ Since March 2020, 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 23, 2023, the Bureau placed in home confinement a total of 
52,561 inmates.\17\ The majority of those inmates have since completed 
their sentences; as of January 23, 2023, there were 5,597 inmates in 
home confinement.\18\ According to the Bureau, 3,434 of these inmates 
were placed in home confinement pursuant to the CARES Act.\19\
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    \14\ Memorandum for the Director, BOP, from the Attorney 
General, Re: Increasing Use of Home Confinement at Institutions Most 
Affected by COVID-19, at 1 (Apr. 3, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf.
    \15\ See, e.g., Memorandum for Chief Executive Officers, from 
Andre Matevousian et al., BOP, Re: Home Confinement (Nov. 16, 2020), 
https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf.
    \16\ See Memorandum for Chief Executive Officers, from Andre 
Matevousian et al., BOP, Re: Home Confinement (Apr. 13, 2021), 
https://www.bop.gov/foia/docs/Home%20Confinement%20memo_2021_04_13.pdf.
    \17\ See BOP, 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. 3, 2023).
    \18\ See id.
    \19\ As of January 25, 2023, 5,613 inmates are currently in home 
confinement, with 3,436 of those individuals in CARES Act home 
confinement.
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    An inmate placed in home confinement is not considered released 
from Bureau custody. Rather, the inmate continues serving their 
sentence at home in their community. These individuals must follow a 
set of rules designed to aid in their management, facilitate their 
reintegration into society, and support their rehabilitative efforts. 
For example, 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. Moreover, 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.\20\ To remain in home 
confinement, inmates must comply with their agreed-upon conditions of 
supervision.\21\
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    \20\ BOP, Program Statement 7320.01, Home Confinement (Sept. 6, 
1995), as updated by Change Notice (Dec. 15, 2017), https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf.
    \21\ See id. at 12-15 (including agreement outlining terms of 
home confinement); see also BOP Form BP-A0548, Home Confinement and 
Community Control Agreement (June 2010), https://www.bop.gov/policy/forms/BP_A0548.pdf.
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    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 the Attorney General has made a finding that emergency 
conditions are materially affecting the Bureau'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 interpretation of the CARES Act permits the Bureau to 
continue to make 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,\22\ following the end of the 
covered emergency period. In its recent opinion, the Office of Legal 
Counsel (``OLC'') concluded that section 12003(b)(2) does not require 
the Bureau to return to secure custody inmates in CARES Act home 
confinement following the end of the covered emergency period. See 
Discretion to Continue the Home-Confinement Placements of Federal 
Prisoners After the COVID-19 Emergency, 45 Op. O.L.C. __ (Dec. 21, 
2021) (``Home-Confinement Placements''). The Department hereby 
incorporates the analysis from that OLC opinion into the preamble of 
this final rule. Even if the relevant provision of the CARES Act were 
considered ambiguous, however, the Department's interpretation 
represents a reasonable one that would warrant deference under Chevron, 
U.S.A., Inc. v. Natural

[[Page 19832]]

Resource Defense Council, Inc., 467 U.S. 837 (1984).\23\
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    \22\ 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 . . . 
.'').
    \23\ See Home-Confinement Placements, 45 Op. O.L.C. __, at *2, 
*15.
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    While the home confinement program under the CARES Act has been a 
measurable success, inmates and their families have sought assurance 
that those already in home confinement will not be abruptly returned to 
secure custody after the end of the covered emergency period. The 
Department remains sensitive to these concerns and agrees with the 
expressions of support from some Members of Congress for expanding the 
use of home confinement based on the needs of individual offenders.\24\ 
With that in mind, the Department's interpretation is 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 require the Director to 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. Although placements under the CARES Act 
were not made for reentry purposes, the Department concludes that 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 supporting inmates' eventual 
reentry into the community.
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    \24\ See, e.g., Senate Committee on the Judiciary, Durbin, 
Booker: We Should Not Force Individuals on Home Confinement to 
Return to Prison (July 20, 2021), https://www.judiciary.senate.gov/press/dem/releases/durbin-booker-we-should-not-force-individuals-on-home-confinement-to-return-to-prison; Letter for Colette S. Peters, 
Director, BOP, from Representative Bonnie Watson Coleman, 
Representative Pramila Jayapal, and Representative Henry C. ``Hank'' 
Johnson Jr. (Oct. 7, 2022), https://watsoncoleman.house.gov/imo/media/doc/letter_to_bop_dir_peters.pdf; Press Release, 
Representative Kelly Armstrong, Armstrong Supports DOJ Decision 
Allowing Inmates Released Under CARES Act to Remain in Home 
Confinement (Dec. 21, 2021), https://armstrong.house.gov/media/press-releases/armstrong-supports-doj-decision-allowing-inmates-released-under-cares-act.
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    After publication of this final rule, the Department and the Bureau 
will work together to develop guidance to explain objective criteria 
the Bureau 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. Providing the Bureau with discretion to 
determine whether any inmate placed in home confinement under the CARES 
Act should return to secure custody will bolster the Bureau's ability 
to efficiently manage its resources and nimbly address changing 
circumstances in the community, in relation to the needs and profiles 
of individual inmates.
* * * * *
    For the reasons provided in this final rule, the Department 
codifies 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 rule reflects the 
interpretation of the CARES Act set forth in OLC's December 21, 2021, 
opinion,\25\ is consistent with recent legislation from Congress 
supporting expanded use of home confinement,\26\ and advances the best 
interests of inmates and the Bureau from penological, rehabilitative, 
public health, and public safety perspectives.\27\
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    \25\ See generally Section II.C. of the preamble to the proposed 
rule (87 FR 36790-92).
    \26\ See generally Section II.D. of the preamble to the proposed 
rule (87 FR 36792-93).
    \27\ See generally Section II.E. of the preamble to the proposed 
rule (87 FR 36793-95).
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III. Discussion of Comments and the Department's Responses.

A. General Overview

    The Department received a total of 71 comments in response to the 
notice of proposed rulemaking. Of those 71 comments, 66 were 
substantive,\28\ and of those 66 substantive comments, three were 
neutral (neither in support of, nor in opposition to, the proposed 
rule) and one was opposed, leaving 62 total substantive comments in 
support of the final rule. Of the 62 total substantive comments in 
support, 28 are substantive statements in support, with no suggested 
revisions, while 34 are substantive statements in support, with 
suggested revisions.
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    \28\ Of the 71 comments, three were duplicate electronic 
submissions; one comment was completely blank; and one comment was 
untimely, although the attachment to it was still added to comment 
BOP-2022-0001-0066, which was timely filed by the same organization. 
Thus, there are 66 substantive comments in total.
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B. Comments in Support

    The 62 substantive comments in support collectively emphasized 
several benefits to individuals and society of allowing inmates to 
remain in CARES Act home confinement after the expiration of the 
covered emergency period. Among the benefits mentioned are (1) the 
already-active and continuing process of their reintegration into 
society; (2) rehabilitative steps they have taken toward becoming 
contributing members of their community; (3) gainful employment they 
have secured or educational courses in which they have enrolled; (4) 
continued care for children or elderly parents; and (5) relationships 
with family and friends that have begun to mend. Additional benefits in 
support include (6) the notable cost savings to taxpayers; and (7) a 
reduction in health and safety risks to Bureau staff and inmates that 
result from overcrowding.
    While the 34 substantive statements in support, with suggested 
revisions, were in favor of the final rule, these commentors also put 
forth four revisions, and urged the Department either to place the 
revisions in the text of the final rule or to address them in a 
separate rulemaking. The various suggested revisions include: (1) 
expanding CARES Act home confinement eligibility based on existing law 
to increase the number of inmates considered for placement; (2) 
clarifying that sentence length will not be used as a criterion for 
return to secure custody; (3) establishing clear objective criteria 
Bureau-wide so inmates in home confinement are on notice of what 
potential rule violations would prompt a return to secure custody; and 
(4) creating an administrative process by which inmates accused of 
violations and presented with a return to secure custody can avail 
themselves of due process protections and challenge their alleged 
violations. Each of these four suggested revisions is discussed 
separately in Section C of this preamble.
    The Department first briefly addresses each of the 7 benefits 
raised by the 62 comments in support, noting that 22 of the commentors 
self-identified as either a Bureau inmate currently in CARES Act home 
confinement, or a family member of a Bureau inmate affected directly by 
CARES Act home confinement.
(1) The Already-Active Process of These Individuals' Reintegration Into 
Society
    Several commentors noted that some inmates have been in home 
confinement since the earliest days of the pandemic, meaning they have 
already spent nearly two and a half years reintegrating into society. 
One commentor noted that since being placed in home confinement on 
December 29, 2020, she has become a successfully integrated, law-
abiding citizen. She urged the Department to allow those like her to 
continue being successful by remaining in home confinement. Another 
commentor stated he has just over 4 years remaining on his sentence, 
and that he is employed and provides care for his elderly parents. He 
also noted he has lost weight and that, as a result, his diabetes and 
blood pressure are better managed.

[[Page 19833]]

Yet another commentor, in home confinement since May 2021, remarked 
that he started a job as a paralegal, became a part-time student at a 
university, and is engaged in rebuilding relationships with his 
parents, who are in their 70s.
(2) The Rehabilitative Steps These Individuals Have Taken Toward 
Becoming Valuable Members of Their Communities
    Several commentors touted the rehabilitative steps inmates in home 
confinement have already taken. One commentor emphasized that 
individuals uninterested in pursuing criminal activity inside prison do 
better at home and with supportive families, rather than remaining 
inside a prison where such criminal enterprises sometimes thrive. 
Another commentor, in expressing concern about whether he would be 
among the inmates recalled to secure custody from home confinement, 
noted that such a result would separate him from his job, church, 
family care, and his own medical care--all of which have aided him in 
his rehabilitation. A commentor in home confinement since May 2020 said 
being home has empowered him and other elderly inmates like him to 
become productive members of society once again, and to proactively 
manage their age-related health conditions.
(3) The Gainful Employment They Have Secured or Educational Courses in 
Which They Have Enrolled
    Several commentors noted that some inmates in home confinement have 
enrolled in classes or secured jobs. Enrollment in college, gainful 
employment, and community volunteer work have been made possible by 
these inmates' placement in home confinement in the communities where 
they intend to live. They have been able to develop and improve their 
future educational or employment opportunities in their communities.
(4) The Care for Elderly Parents or Children for Whom They Have Been 
Providing
    Several commentors specifically raised the issues of parent-care 
and childcare, and how being home has enabled them to provide that care 
and lessen the burden for other caregivers. One commentor underscored 
how his time in home confinement has allowed him to care for his 
elderly parents, both of whom have experienced markedly improved health 
due, in part, to his care for them. Other commentors emphasized the 
familial benefits of having mothers and fathers at home with children.
(5) The Relationships With Family and Friends That Have Begun To Mend
    Many commentors noted that inmates placed in home confinement have 
had months, and, in some cases, years, to begin the time-intensive and 
difficult process of trying to mend relationships with family and 
friends. The crux of these commentors' concern was that abruptly 
returning any of these inmates to secure custody would jeopardize the 
progress already made and would threaten to negate the efforts already 
expended.
(6) The Notable Cost Savings To Taxpayers
    Several commentors also touted as a benefit to taxpayers the 
statistics cited in the proposed rule, showing how much less it costs 
to supervise an inmate in CARES Act home confinement than housing that 
same individual in secure custody inside a Bureau institution. Most of 
these commentors indicated they view a reduction in prison populations 
by operation of a program that supervises home confinement inmates for 
significantly less money to be a win-win for the taxpaying public and 
the overburdened prison system.
(7) The Reduction in Health and Safety Risks to Bureau Staff and 
Inmates That Result From Crowding
    A few commentors viewed the proposed rule as providing a benefit to 
the health and safety of inmates and staff, alike. With vulnerable 
inmates being transferred to home confinement, prison populations 
shrink and the problem of crowding improves, thereby reducing health 
and safety risks to other inmates and Bureau staff.
    Department Response: The Department agrees with these comments and 
believes the seven benefits noted by them are, indeed, important 
considerations in support of this final rule. Congress itself, as 
demonstrated through the passage of the Second Chance Act of 2007 
(``SCA'') and the First Step Act of 2018, has consistently shown its 
intention in passing legislation aimed at appropriately preparing 
inmates for successful reintegration into society. Part of addressing 
this congressional intent involves an ongoing reevaluation of the 
societal and individualized benefits of incarceration versus non-
custodial rehabilitative programs.
    The Department and the Bureau know home confinement provides 
important penological benefits as one of the last steps in the reentry 
process. An inmate would usually be moved over the course of a sentence 
to progressively less restrictive 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. 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.\29\ Accordingly, 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.
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    \29\ See SCA, Public Law 110-199, sec. 3(b)(6), (7), (19), 122 
Stat. 657, 659-60 (2008) (``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 to 
the community, and therefore can reduce recidivism.'').
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    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.\30\ In contrast, according to the Bureau, an 
inmate in home confinement costs an average of $55.26 per day--less 
than half 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 
for a particular inmate, 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, regarding which Congress cited 
a need to ``control corrections spending, manage the prison population, 
and reduce recidivism.'' \31\
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    \30\ Annual Determination of Average Cost of Incarceration Fee 
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
    \31\ 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.'').
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    Finally, the Bureau needs flexibility to consider whether continued 
home

[[Page 19834]]

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.\32\ Data have shown that crowding in 
prisons, which makes social distancing difficult, if not impossible, is 
associated with increased incidence of COVID-19.\33\ Although COVID-19 
vaccines are widely available and effective at preventing serious 
illness, hospitalization, and death, and also help protect against 
infection, not all incarcerated persons will elect to receive COVID-19 
vaccinations,\34\ and breakthrough infections may occur even in fully 
vaccinated persons, who are then able to spread the disease.\35\
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    \32\ See, e.g., Pandemic Response Accountability Committee, Key 
Insights: COVID-19 in Correctional and Detention Facilities, at 2 
(May 12, 2021), https://www.oversight.gov/sites/default/files/oig-reports/PRAC/Key-Insights-COVID-19-Correctional-and-Detention-Facilities.pdf; Nat'l Academies of Sciences, Engineering, and 
Medicine, Decarcerating Correctional Facilities During COVID-19: 
Advancing Health, Equity, and Safety 23-44 (Emily A. Wang et al., 
eds., 2020), https://doi.org/10.17226/25945.
    \33\ 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 (Emily A. Wang et al., eds., 2020), 
https://doi.org/10.17226/25945.
    \34\ An early study 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, 5883, 5887 (2021).
    \35\ CDC, COVID-19 After Vaccination: Possible Breakthrough 
Infection (updated June 23, 2022), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html.
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    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,\36\ 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.
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    \36\ See Memorandum for the Director, BOP, from the Attorney 
General, Re: Prioritization of Home Confinement As Appropriate in 
Response to COVID-19 Pandemic at 1-2 (Mar. 26, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf 
(directing the Bureau to consider, among other discretionary 
factors, ``[t]he age and vulnerability of [an] inmate to COVID-19'' 
when assessing which inmates should be placed in home confinement).
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C. Comments With Suggested Revisions

    The 34 substantive statements in support, with suggested revisions, 
collectively propose four changes either to the final rule or by 
operation of a separate notice-and-comment rulemaking. Each proposed 
revision is discussed below.
(1) Expanding CARES Act Home Confinement Eligibility Based on Existing 
Law To Increase the Number of Inmates Who Can Be Considered
    Twelve commentors specifically called for the expansion of CARES 
Act home confinement to increase the number of inmates who initially 
qualify. These comments focused on expansion of the program to include 
more non-violent offenders (especially those with drug offenses), 
regardless of the time left to serve on their sentences. These 
commentors suggest that violent offenders should remain in secure 
custody, but they urge the Department and the Bureau to broaden the 
criteria for CARES Act home confinement so that others may qualify. 
These commentors cite to the statistics and arguments contained in the 
proposed rule in support of the conclusion that the CARES Act home 
confinement program not only works, but also has been a success.
    Department Response: The Department interprets these commentors' 
suggestion to be an expansion of the current eligibility criteria that 
are in place and that were developed by the Bureau in light of the 
Attorney General's April 3, 2020, memorandum. In that memorandum, the 
Attorney General instructed the Director to use the expanded home 
confinement authority provided in the CARES Act to place in home 
confinement the most vulnerable inmates at the facilities most affected 
by COVID-19, 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.\37\ The April 3, 2020, 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 inmate considered and must continue to act consistently with 
its obligation to preserve public safety.\38\
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    \37\ Memorandum for the Director, BOP, from the Attorney 
General, Re: Increasing Use of Home Confinement at Institutions Most 
Affected by COVID-19, at 2 (Apr. 3, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf.
    \38\ See id. at 3.
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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 sentence or those who had 18 months or less remaining on 
their sentence and had served more than 25 percent of that 
sentence.\39\ That guidance also instructed that pregnant inmates 
should be considered for placement in a community program, to include 
home confinement.\40\ The 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, not a sex offense, and not terrorism 
related.\41\ 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 the 
CDC.\42\
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    \39\ See, e.g., Memorandum for Chief Executive Officers, from 
Andre Matevousian et al., BOP, Re: Home Confinement, at 2 (Nov. 16, 
2020), https://www.bop.gov/foia/docs/Updated_Home_Confinement_Guidance_20201116.pdf.
    \40\ Id.
    \41\ See id.
    \42\ See id. at 3.
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    The Department believes that allowing the Bureau to continue using 
internally developed criteria to evaluate inmates' requests for home 
confinement is consistent with the CARES Act and the Attorney General's 
guidance, and that such criteria have already led to a marked increase 
in the number of inmates placed in CARES Act home confinement. 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. 
Accordingly, the Department declines to limit the discretion afforded 
to the Director to implement certain criteria that, in the Director's 
judgment, are necessary to the proper allocation of Bureau resources.

[[Page 19835]]

(2) Clarifying That Sentence Length Will Not Be Used as a Criterion for 
Return To Secure Custody
    Ten commentors urged the Department not to allow the Bureau to 
consider the length of time remaining on an inmate's sentence as an 
independent criterion as part of any set of objective factors used to 
determine whether an inmate may remain in home confinement. Commentors 
who raised this concern do not think the Director's discretion should 
extend to allowing the length of time remaining on an inmate's sentence 
to be an independent criterion for return-to-custody consideration. As 
one commentor wrote, language should be included to clarify ``that no 
one should be returned to prison solely based on the amount of time 
they have left'' on their sentence. In support of this proposed 
revision, the same commentor cited to a sentence in the proposed rule 
that reads in part that ``the widespread return of prisoners to secure 
custody without a disciplinary reason would be unprecedented.'' The 
comment continued by noting the seemingly conflicting language in the 
Bureau's former General Counsel's December 10, 2021, memorandum, in 
which he noted that the Bureau's criteria for determining which inmates 
should return to secure custody ``will likely include . . . the length 
of time remaining on the sentence.'' \43\ The comment also highlighted 
these sentences from that memorandum: ``Sentence length is likely to be 
a significant factor, as the more time that remains will provide the 
agency a more meaningful opportunity to provide programming and 
services to the offender in a secure facility. . . . It is likely that 
inmates that have longer terms remaining would be returned to secure 
custody, while those with shorter terms left who are doing well in 
their current placement would be allowed to remain there, subject to 
the supervisory conditions described above.'' \44\ The commentor's 
concern is that the representations in the December 10, 2021, 
memorandum make it reasonably clear that the Bureau would consider the 
length of time remaining on a sentence as one of several criteria 
developed to determine which inmates will return to secure custody.
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    \43\ See Memorandum for Christopher H. Schroeder, Assistant 
Attorney General, OLC, from Ken Hyle, General Counsel, BOP, Re: 
Views Regarding OLC Opinion, ``Home Confinement of Federal Prisoners 
After the COVID-19 Emergency'' dated January 15, 2021, at 5-6 (Dec. 
10, 2021), https://www.aclu.org/sites/default/files/field_document/bop_cares_memo_12.10.21.pdf.
    \44\ Id. at 6.
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    Department Response: The Department understands this concern, 
which, at its core, laments the lack of any definitive assurance upon 
which individuals in CARES Act home confinement can currently rely to 
know whether the length of time remaining on their sentences will 
prompt their return to secure custody. The Department reiterates that, 
under typical circumstances, inmates who have made the transition to 
home confinement would not be returned to a secure facility absent a 
disciplinary reason. This is because the typical purpose of home 
confinement is to allow inmates to readjust to life in the community. 
Removal from the community of those already making progress in home 
confinement would frustrate this goal, and the widespread return of 
prisoners to secure custody without a disciplinary reason would be 
unprecedented and out of step with the reentry-specific goals of home 
confinement, as mentioned throughout this final rule.
    While the Department understands these commentors' concern with 
respect to this issue, the Department declines to include in the final 
rule language withdrawing discretion from the Director to consider the 
length of time remaining on an inmate's sentence as part of a set of 
criteria to determine which inmates may return to secure custody after 
the end of the covered emergency period. 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.
    However, the Department re-emphasizes that following the issuance 
of this final rule, the Bureau will develop, in consultation with the 
Department, guidance to explain criteria 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. 
The Department and the Bureau commit to working together as 
expeditiously as practicable after issuance of this final rule to 
develop these criteria.
(3) Establishing Clear Objective Criteria Bureau-Wide so Inmates in 
Home Confinement are on Notice of What Potential Rule Violations Would 
Prompt a Return To Secure Custody
    Fourteen commentors expressed concern that the rule does not 
contain objective criteria for what constitutes a violation that would 
return an inmate to secure custody, and four commentors specifically 
expressed that the Director should not be granted the discretion to 
develop criteria to be used to determine which individuals may be 
returned to secure custody. These four commentors ask that the 
objective criteria be published in this final rule or, alternatively, 
developed as part of a separate notice-and-comment rulemaking.
    The concerns about a lack of objective criteria in the rule are 
rooted in these commentors' belief that the Bureau will abuse the 
discretion given by the final rule and, as a result, will develop a set 
of criteria they worry will run counter to the goals and intent 
expressed in this rule. These commentors also argued that the 
individuals in CARES Act home confinement should know sooner rather 
than later whether they may be one of those subject to being returned 
to secure custody. Commentors urged the Department to adopt in this 
final rule a presumption that individuals placed in CARES Act home 
confinement should remain there absent a showing they have engaged in a 
significant violation of their conditions of release. Another commentor 
stated that language should be included limiting the Director's 
discretion to return an inmate to secure custody only ``for a serious 
violation of their terms of release'' or ``for new crimes'' committed 
while in home confinement. The concern with the discretion given to the 
Director is that it allows the Director ``to return individuals to 
prison for ill-defined and vague reasons.'' This lack of boundaries, 
the commentors continued, is a ``potential loophole for arbitrary and 
capricious decision-making.''
    These commentors go on to say that the Bureau ``should issue a new 
proposed rule--subject to notice and comment rulemaking--that clearly 
enumerates the conduct that would warrant return to a correctional 
facility. It should also make clear that the enumerated conduct is 
limited to only the most serious and verified violations.'' They also 
urged the Department to ``establish clear criteria and procedures for 
returning an individual from home confinement to a correctional 
facility.'' Specifically, ``[a]ny return to a correctional facility 
should be triggered only by a serious violation of the conditions of 
home confinement, determined on the basis of articulated factors, and 
consistent with constitutional due process.'' The commentors' concerns 
involve primarily what they describe as ``technical missteps'' that do 
not threaten community safety and should not be

[[Page 19836]]

grounds for a revocation. These commentors end with: ``A clear, 
publicly available rule that establishes how BOP will exercise any 
discretion, that is available to the public and individuals in BOP 
custody, and that is not subject to easy change outside the public 
view, will assist in providing that stability. Indeed, engaging in 
rulemaking here is legally mandated if BOP intends to treat this 
guidance as internally binding on BOP officials. For all relevant 
purposes, binding guidance constitutes a rule and should be subject to 
notice-and-comment procedures. See generally Appalachian Power Co. v. 
Environmental Protection Agency, 208 F.3d 1015 (D.C. Cir. 2000).''
    Another commentor, concerned with ``vague and amorphous standards 
for revoking supervision,'' argued for objective and clearly defined 
criteria for reincarceration, along with a ``graduated sanctions matrix 
for technical violations . . . that provide[s] for interim sanctions 
for low-level or technical violations of supervision conditions.'' This 
commentor continued: ``These matrices provide supervision officers 
tools to address minimal non-compliance without resorting to total 
revocation, which is costly and administratively burdensome. A similar 
matrix should be developed as part of the Bureau's new guidance on 
revocation of home confinement.''
    Department Response: The Department remains sensitive to 
commentors' desire for a clear set of criteria the Bureau will use to 
determine whether an inmate will be returned to secure custody. 
However, the Department declines to use this final rule to limit the 
discretion afforded to the Director to develop a set of objective 
criteria, in consultation with the Department. The Department also 
disagrees that the creation of these objective criteria must be done 
through a separate notice-and-comment rulemaking. Instead, the 
Department believes the Bureau's future development of policy and its 
issuance of advisory memoranda can provide the clarity sought in these 
comments.
    Allowing the Bureau discretion to develop these criteria will leave 
the Bureau with one of its most important tools--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 \45\ and discretion to designate the place of those inmates' 
imprisonment.\46\ Courts have recognized the Bureau's authority to 
administer inmates' sentences,\47\ supporting this management 
principle. The Bureau's ability to control populations in Bureau-
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.
---------------------------------------------------------------------------

    \45\ 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 . . . 
.'').
    \46\ 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.
    \47\ See, e.g., United States v. Wilson, 503 U.S. 329, 335 
(1992); Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir. 
2016).
---------------------------------------------------------------------------

    The Department emphasizes that, 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 
typical 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, 
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.\48\
---------------------------------------------------------------------------

    \48\ 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 such as 
the inmate's history and characteristics. See 18 U.S.C. 3621(b).
---------------------------------------------------------------------------

    Additionally, 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. Instead, the vast majority of inmates in CARES Act 
home confinement have complied with the terms of the program and have 
been successfully serving their sentences in the community. 
Accordingly, the Department does not believe the statistically low 
numbers of inmates returned to custody merit inclusion of criteria in 
this final rule or in a separate notice-and-comment rulemaking. The 
Department and the Bureau remain committed to considering multiple 
factors when developing common criteria to govern these case-by-case 
assessments, thereby promoting operational efficiency. In furtherance 
of that commitment, the Department and Bureau intend to make the 
agreed-upon criteria publicly available once developed.
(4) Creating An Administrative Procedure by Which Inmates Accused of 
Violations and Threatened With a Return To Secure Custody Can Avail 
Themselves of Due Process Protections and Challenge Their Alleged 
Violations
    Fourteen commentors expressed support for the creation of an 
administrative process by which inmates accused of violating the terms 
of their home confinement may challenge those violations prior to being 
returned to secure custody. Specifically, these commentors urged the 
Department to ensure individuals receive due process, including the 
opportunity to contest the allegations at a hearing before a neutral 
decision maker, with the assistance of counsel and the ability to 
confront witnesses and present evidence. They also indicated their 
belief that an inmate's placement in CARES Act home confinement creates 
a liberty interest in remaining on that status, and the threatened 
revocation of such an interest must be preceded by a process similar to 
that used in parole or probation revocations. Some of the commentors 
expressed concern that the Bureau did not permit an inmate's counsel to 
participate in the process of home confinement revocation, going on to 
argue that the Bureau ``should establish rules permitting retained 
counsel to participate in all stages of the revocation process and 
provide for the appointment of counsel for indigent people facing 
return to a correctional facility who do not have attorneys.''
    One commentor offered the following regarding administrative or 
judicial review: ``Confinees should be given the

[[Page 19837]]

right to administrative or judicial review of a decision to 
reincarcerate. Such review would be unlikely to create a substantial 
administrative burden, as recent experience suggests--the Bureau, for 
example, acknowledged in the proposed rule that `violations of the 
conditions of home confinement requiring return have been rare during 
the pandemic emergency . . . and very few inmates placed in home 
confinement under the CARES Act have committed new crimes.' 87 FR at 
36,788. This experience suggests that few if any confinees will be 
subject to reincarceration in future emergencies.''
    Department Response: As an initial matter, the Department notes 
inmates who violate the terms of home confinement, including CARES Act 
home confinement, are not necessarily returned to secure custody. BOP's 
progressive discipline for home confinement violations mitigates an 
all-or-nothing approach, allowing BOP to only impose restrictions 
commensurate with the circumstances of the violation. Violations are 
examined based on severity and alongside any prior violations to 
determine how the terms of home confinement should be adjusted. 
Progressive discipline may begin with increased controls and checks, 
while allowing the inmate to remain in their home. For moderate 
violations, the inmate may be placed in a residential reentry center. 
Only serious or chronic violations will necessarily result in return to 
secure custody.
    The Department further notes that the Bureau does have an 
established process by which those in CARES Act home confinement may 
contest the violation that prompted the decision to return the inmate 
to secure custody. It is called the Administrative Remedy Program. 
Whether the inmate is appealing increasingly strict conditions of 
confinement or a full return to secure custody, the Administrative 
Remedy Program provides a structured avenue of review and relief.
    The Department also notes that Federal regulations and Bureau 
policy regarding the Administrative Remedy Program have always provided 
for the filing of a grievance and appeal by Bureau inmates in community 
custody.\49\ The regulation, which refers to Community Corrections 
Centers (now known as Residential Reentry Centers), includes inmates in 
home confinement. Under the regulation, the ``Community Corrections 
Manager'' (the same position as the current position of Residential 
Reentry Manager (RRM)) is responsible for the implementation and 
operation of the Administrative Remedy Program at the Community 
Corrections Center (CCC).\50\ Like any other inmates monitored in 
community custody, inmates in home confinement need not first attempt 
informal resolution before filing a grievance.\51\ The timelines 
outlined in the Administrative Remedy Program apply to home confinement 
inmates, who are also entitled to file an appeal of an adverse 
disciplinary action.\52\ The RRM for the region in which the inmate is 
located must respond to the grievance or appeal within the timeframe 
outlined in the regulation.\53\
---------------------------------------------------------------------------

    \49\ See 28 CFR 542.10(b) (noting the ``Program applies to all 
inmates in institutions operated by the Bureau of Prisons, [and] to 
inmates designated to contract Community Corrections Centers (CCCs) 
under Bureau of Prisons responsibility'').
    \50\ 28 CFR 542.11(a).
    \51\ 28 CFR 542.13(b).
    \52\ 28 CFR 542.14(a).
    \53\ 28 CFR 542.18.
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    The Department has maintained that placement in CARES Act home 
confinement does not create a constitutionally protected liberty 
interest.\54\ We therefore decline to develop a separate administrative 
process by which inmates in CARES Act home confinement may challenge 
revocations, either by inclusion in this final rule or through a 
separate notice-and-comment rulemaking.
---------------------------------------------------------------------------

    \54\ See, e.g., Cardoza v. Pullen, 3:22-CV-00591 (SVN), 2022 WL 
3212408 (D. Conn. Aug. 9, 2022); Frank v. Ramos, No. 5:21-HC-02174-
M, 2022 WL 1377950 (E.D.N.C. May 2, 2022); see also Hatch v. Lappin, 
660 F. Supp. 2d. 104 (D. Mass. 2009); cf. Touizer v. Att'y Gen., No. 
21-10761, 2021 WL 3829618 (11th Cir. Aug. 21, 2021).
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D. Comment in Opposition

    The Department received only one comment in opposition to the 
proposed rule. The commentor concluded that the initial (January 2021) 
OLC opinion, which declared the Bureau would have been required to 
return all CARES Act home confinement inmates to secure custody at the 
expiration of the covered emergency period, was correct and represented 
the only tenable interpretation of the CARES Act. The commentor 
contended that, with the issuance of the second OLC opinion overruling 
the first one, the Department engaged in a results-oriented analysis 
employed in ignorance of the law and to appease criminal justice 
activists. The commentor noted that the proposal contemplated by the 
rule would lead to an absurd result because the Bureau would have 30 
days after the end of the covered emergency period to move as many 
inmates as it wanted from secure custody to home confinement for the 
remainder of their sentences.
    The commentor also said that the proposed rule ignores the changed 
circumstances surrounding the pandemic and the ``materially affect the 
functioning'' requirement, which the commentor claimed is arguably no 
longer met by current circumstances. The commentor cited four 
considerations present now that were not present at the beginning of 
the pandemic: (1) the wide availability of both vaccines and tests; (2) 
the fact that studies focused on ``crowding'' in prisons during COVID-
19 were conducted prior to the wide availability of vaccines to 
inmates; (3) the ability of inmates to intentionally refuse to receive 
the vaccine in order to make themselves more vulnerable to infection; 
and (4) the proposed rule's disregard for the ``materially affect'' 
phrase by relying on speculation about new variants that could exist or 
spread in the future.
    Department Response: Initially, for the reasons articulated in 
Sections II.C. and II.D. of the preamble to the proposed rule, the 
Department disagrees that it should revert to the reasoning of the 
January 2021 OLC opinion. Instead, the Department reaffirms its 
reliance on the analysis contained in the December 2021 OLC opinion. 
The Department also disagrees with the commentator's contention that 
this rule would lead to the ``absurd result[ ]'' of BOP, during the 30 
days after the national emergency ends, ``release[ing] as many inmates 
as possible to home confinement and hav[ing] them stay there until the 
end of their sentences,'' which would be ``a scenario . . . not 
plausibly contained within the temporary authority that Congress 
granted to the Department . . . .'' This concern is unwarranted. The 
BOP does not intend, nor does the Department intend to advise BOP, to 
move eligible inmates en masse to CARES Act home confinement in the 30 
days following the ending of the national emergency.
    Addressing the commentator's argument that the rule ignores four 
changed circumstances: First, the Department does not dispute the 
public health value of widespread testing and readily available 
vaccines, but unfortunately, neither testing nor vaccination can 
guarantee that inmates, especially medically vulnerable ones, will not 
contract any of a number of variants of COVID-19 while incarcerated. 
While the risk of severe illness or death is lower for those who are 
fully vaccinated, risk remains, and there are also some inmates whose 
medical history and vaccination status make them more susceptible to 
infection or to experiencing severe symptoms. Moreover, the BOP does 
not require vaccination of inmates. The

[[Page 19838]]

commentator also suggests mandatory testing of visitors to BOP 
institutions. This raises several concerns: the issues of what tests 
BOP would accept, and from what medical service providers; the fact 
that denying counsel entry for client visitation, either for refusal to 
test or unacceptable proof of negative status, creates serious due 
process concerns for the client, particularly in the time-sensitive 
pretrial context; to the extent that the commentator is suggesting that 
BOP itself administer tests to visitors, diverting critical medical 
staff devoted to inmate health care to administer and interpret these 
tests, and finally, the lack of space outside the secure perimeter to 
convert into makeshift testing and waiting areas at some institutions.
    Second, studies published early in the pandemic about overcrowding 
and the spread of the virus within correctional institutions are no 
less compelling and relevant today in cautioning against recalling to 
secure custody those inmates who have been placed in home 
confinement.\55\ Even with the availability of testing and vaccines, 
the Department maintains that a multi-faceted approach to mitigating 
the spread of COVID-19 within the Federal prison population is the most 
effective way to protect vulnerable inmates.
---------------------------------------------------------------------------

    \55\ While a vaccinated inmate population is ``an extremely 
effective tool for the prevention of COVID-19 in prisons[,]'' as of 
early last year, there have been ``few studies evaluating COVID-19 
in prisons and vaccination.'' Massimiliano Esposito et al., The Risk 
of COVID-19 Infection in Prisons and Prevention Strategies: A 
Systematic Review and a New Strategic Protocol of Prevention, 10 
Healthcare, at 4, 10 (2022), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8872582/.
---------------------------------------------------------------------------

    Third, regarding the Department's justification for the rule based 
in part on inmates' right to refuse vaccination, the Department 
reiterates that inmates retain certain rights during incarceration, 
including a limited right to accept or reject medical treatment. 
Granting the BOP Director discretion to keep inmates in CARES Act home 
confinement allows for the flexibility needed to mitigate the spread of 
COVID-19.
    Fourth, new variants and sub-variants have already become dominant 
in the community. The short- and long-term impacts of these variants--
some of which have evolved to be increasingly effective at 
circumventing immunity acquired through vaccinations and infections--
remain uncertain. Therefore, it is reasonable and prudent to prepare 
for the potential impact of a new COVID-19 variant on the Federal 
inmate population.
* * * * *
    The Department recognizes that there are other potential costs to 
inmates serving longer sentences in home confinement as a result of the 
CARES Act. For example, 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 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, any 
impact on victims or witnesses, possible deterrence effects in the 
community, or other aspects of the Department's mission. These costs 
are all mitigated, however, by retaining the Director's discretion.
    As the low percentage of inmates placed in 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 16, 2023, only 515 had 
been returned to secure custody for any reason, and only 21 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 
that 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.\56\ CARES Act inmates who remain in home confinement after 
the end of 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.\57\ Thus, in the Department's interpretation 
and discretion, 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.
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    \56\ See BOP, Program Statement 7320.01, Home Confinement (Sept. 
6, 1995), as updated by Change Notice (Dec. 15, 2017), https://www.bop.gov/policy/progstat/7320_001_CN-2.pdf.
    \57\ 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).
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III. Regulatory Certifications

A. Regulatory Flexibility Act

    The Attorney General, under the Regulatory Flexibility Act (5 
U.S.C. 605(b)), reviewed this 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 rule pertains 
to the correctional management of offenders committed to the custody of 
the Attorney General or the Director of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

B. Executive Orders 12866 and 13563

    This 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 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 rule as 
required by section 1(b)(6) of Executive Order 12866 and has made a 
reasoned determination that the benefits of this rule justify its 
costs.

[[Page 19839]]

    The economic impact of this 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 23, 2023, 3,434 inmates had 
been placed in home confinement under the CARES Act; 2,026 of those 
inmates had release dates in more than 12 months. The Department 
expects these numbers will continue to fluctuate as inmates serve their 
sentences and the Bureau conducts 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 COIF for FY 2021, 
in FY 2020 the average COIF for a Federal inmate in a Federal facility 
was $120.59 per day.\58\ The average cost for an inmate in home 
confinement was $55.26 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 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 rulemaking.
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    \58\ Annual Determination of Average Cost of Incarceration Fee 
(COIF), 86 FR 49060, 49060 (Sept. 1, 2021).
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    As explained above, the rule will also have operational, 
penological, rehabilitative, public safety, 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 and 
rehabilitative goals and the public safety 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 there is no countervailing risk to 
the public safety that outweighs the benefits of this rule. 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 in CARES Act home confinement have 
complied with the terms of the program and have been successfully 
serving their sentences in the community. Thus, in 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 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,\59\ any impact on victims or witnesses, possible deterrence 
effects in the community, or other aspects of the Department'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.
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    \59\ 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.
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D. Executive Order 12988 (Civil Justice Reform)

    This 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 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 regulation does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

F. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of $100 
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 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 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 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:

[[Page 19840]]

Sec.  0.96  Delegations.

* * * * *
    (u) With respect to the authorities granted under the Coronavirus 
Aid, Relief, and Economic Security (CARES) Act:
    (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 the prisoner's 
sentence, as the Director determines appropriate, provided the prisoner 
is compliant with all conditions of supervision. In the event a 
prisoner violates the conditions of supervision, Bureau staff may 
return the prisoner to secure custody, or may utilize progressive 
discipline as outlined in the Residential Reentry Center (RRC) 
contract, which may include possible placement in an RRC or contract 
facility in lieu of direct return to secure custody.
    (3) This paragraph (u) 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: March 30, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-07063 Filed 4-3-23; 8:45 am]
BILLING CODE 4410-05-P