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Rule2022-00918

FSA Time Credits

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Published

January 19, 2022

Effective

January 19, 2022

Issuing agencies

Justice DepartmentPrisons Bureau

Abstract

This rule codifies the Bureau of Prisons' (Bureau or BOP) procedures regarding the earning and application of time credits as authorized by the First Step Act of 2018 (FSA), hereinafter referred to as "FSA Time Credits" or "Time Credits." The FSA provides that eligible inmates earn FSA Time Credits toward prerelease custody or early transfer to supervised release for successfully completing approved Evidence-Based Recidivism Reduction (EBRR) Programs or Productive Activities (PAs) assigned to each inmate based on the inmate's risk and needs assessment. Inmates eligible to apply Time Credits under the FSA include individuals sentenced under the U.S. Code. As required by the FSA, an inmate cannot earn FSA Time Credits if that inmate is serving a sentence for a disqualifying offense or has a disqualifying prior conviction. However, such inmates may still earn other benefits for successfully completing recidivism reduction programming, such as increased privileges (commissary, visiting, and telephone) for participation in EBRR Programs or PAs, as authorized by the Bureau.

Full Text

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<title>Federal Register, Volume 87 Issue 12 (Wednesday, January 19, 2022)</title>
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[Federal Register Volume 87, Number 12 (Wednesday, January 19, 2022)]
[Rules and Regulations]
[Pages 2705-2719]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00918]

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 523 and 541

[BOP-1176P]
RIN 1120-AB76

FSA Time Credits

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: This rule codifies the Bureau of Prisons' (Bureau or BOP)
procedures regarding the earning and application of time credits as
authorized by the First Step Act of 2018 (FSA), hereinafter referred to
as ``FSA Time Credits'' or ``Time Credits.'' The FSA provides that

[[Page 2706]]

eligible inmates earn FSA Time Credits toward prerelease custody or
early transfer to supervised release for successfully completing
approved Evidence-Based Recidivism Reduction (EBRR) Programs or
Productive Activities (PAs) assigned to each inmate based on the
inmate's risk and needs assessment. Inmates eligible to apply Time
Credits under the FSA include individuals sentenced under the U.S.
Code. As required by the FSA, an inmate cannot earn FSA Time Credits if
that inmate is serving a sentence for a disqualifying offense or has a
disqualifying prior conviction. However, such inmates may still earn
other benefits for successfully completing recidivism reduction
programming, such as increased privileges (commissary, visiting, and
telephone) for participation in EBRR Programs or PAs, as authorized by
the Bureau.

DATES: This rule is effective on January 19, 2022.

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

SUPPLEMENTARY INFORMATION: This rule codifies the Bureau of Prisons'
(Bureau) procedures regarding First Step Act (FSA) Time Credits, as
authorized by 18 U.S.C. 3632(d)(4) and Section 101 of the First Step
Act of 2018 (Pub. L. 115-391, December 21, 2018, 132 Stat 5194) (FSA).
The FSA provides that an eligible inmate in Bureau custody who
successfully participates in EBRR Programs or PAs recommended based on
the inmate's risk and needs assessment will earn FSA Time Credits, to
be applied toward prerelease custody (i.e., transfer to a Residential
Reentry Center (RRC) or home confinement for service of a portion of
the inmate's sentence) or transfer to supervised release (i.e., early
satisfaction of the inmate's term of imprisonment) under 18 U.S.C.
3624(g).
The proposed rule on this subject was published on November 25,
2020 (85 FR 75268). The public comment period ended on January 25,
2021. The Bureau received over two hundred and fifty responses to the
publication of the proposed rule, but cannot generate a definite number
of comments, as a significant portion of responses were from inmates in
Bureau facilities and their family members requesting that FSA Time
Credits be applied to the terms of imprisonment of particular inmates,
rather than specific comments or questions regarding the proposed
regulations as published.
Staff at Bureau facilities have been instructed to address specific
questions regarding application of FSA Time Credits to particular
inmates with those individual inmates, and we encourage those with
questions regarding particular inmates to address those questions to
staff at facilities where those inmates are housed, or to the regional
offices with oversight for those facilities. A list of Bureau of
Prisons Regional Offices can be found on the Bureau website: <a href="https://www.bop.gov/about/facilities/offices.jsp?o=4">https://www.bop.gov/about/facilities/offices.jsp?o=4</a>.
The Bureau also received a large number of comments on the proposed
regulations which repeated certain common themes and issues. We have
therefore consolidated the issues raised into representative excerpts
from selected commenters, and address these issues below.
Additionally, on October 18, 2021, the Bureau published a document
reopening the comment period of the proposed rulemaking until November
17, 2021, to solicit public comment on the limited issue of whether DC
Code offenders in Bureau of Prisons custody are eligible to apply Time
Credits under 18 U.S.C. 3632(d)(4), as added by the FSA. 86 FR 57612.
We received thirty submissions during the reopened comment period with
regard to that issue, which we discuss further below.
COMMENT: The Bureau's definition of a ``day'' as one eight-hour-
period of a successfully completed EBRR Program or PA is incorrect,
unworkable, and/or contrary to congressional intent.
The FSA provides that ``[a] prisoner shall earn 10 days of time
credits for every 30 days of successful participation in evidence-based
recidivism reduction programming or productive activities.'' 18 U.S.C.
3632(d)(4)(A)(i). An inmate determined to be at a ``minimum or low risk
for recidivating'' who, ``over 2 consecutive assessments, has not
increased their risk of recidivism, shall earn an additional 5 days of
time credits for every 30 days of successful participation in evidence-
based recidivism reduction programming or productive activities.'' 18
U.S.C. 3632(d)(4)(A)(ii). The statute does not expressly define what
constitutes a ``day'' of successful participation. In the proposed
rule, the Bureau defined it as ``one eight-hour period of participation
in an EBRR Program or PA that an eligible inmate successfully
completes.''
More than 150 commenters raised concerns with the Bureau's
definition. For example, Senator Sheldon Whitehouse (D-RI) and Senator
John Cornyn (R-TX) commented as follows:

The proposed rule's definition of a ``day'' of program
participation does not adequately reward engagement with [EBBR
programs] and PAs consistent with the First Step Act. . . . Because
BOP programs do not run for eight hours per day, the proposed rule
would require individuals to attend an EBRR or PA for several
calendar days before they earned a full ``day'' of time credit. . .
It was not our intent as drafters of the legislation that BOP define
a ``day'' in this way. Nor did Congress ever consider it. . . . The
proposed rule's narrow definition of a ``day'' does not adequately
incentivize program participation and reduce recidivism as intended
by the First Step Act.

Congressman Hakeem Jeffries (D-NY) echoed the Senators' sentiments,
stating:

[D]efining a day as eight hours of participation does not appear
to be a good faith attempt to honor congressional intent. A day of
successful participation is clearly a day on which a prisoner has
successfully participated in a program or productive activity.
BOP[']s definition of [a] day would dramatically reduce the amount
of time credits an individual can earn.

RESPONSE: After carefully considering the comments received, the
Bureau agrees that a change is warranted. The proposed definition of a
day of successful participation was inconsistent with the goals of the
FSA and would have been logistically burdensome to calculate and
administer. The Bureau is thus adopting a simpler FSA Time Credits
program award model that will more fully encourage and reward
participation in evidence-based recidivism reduction programs and
productive activities.
In enacting the FSA, Congress made clear that Time Credits should
be broadly applicable to a wide range of inmates for a broad range of
activities to maximize their opportunities to reduce recidivism. The
proposed definition, however, would have meant that inmates could
successfully do everything asked of them as part of their recommended
programming for multiple days (e.g., two hours each day for four days),
but be credited for only one day of successful participation.
In addition, the proposed definition would have required Bureau
staff to not only track inmate participation in recommended
programming, but also break down participation time into individual
hours of work, and then aggregate time spent completing certain
programming with other time spent completing other programming. This
approach would have varied the earning of Time Credits by program
factors such as intensity, length, and duration that could have been
confusing to inmates, burdensome for staff to administer, and
inconsistent with the general goal of awarding Time Credits in a
consistent manner to inmates who are participating in the full range of
programming

[[Page 2707]]

recommended to them based on the results of their risk and needs
assessments.
The final rule adopts a more straightforward and more
administratively manageable approach that is consistent with the FSA's
goal of promoting successful participation in EBRR Programs and PAs.
For every thirty-day period that an eligible inmate successfully
participates in EBRR Programs or PAs recommended based on the inmate's
risk and needs assessment, the inmate will earn ten days of FSA Time
Credits. If the inmate is determined to be at a minimum or low risk for
recidivating and can maintain that risk level for the most recent two
consecutive risk and needs assessments, that inmate may earn an
additional five days of FSA Time Credits per thirty-day period.
An eligible inmate must successfully participate in programs and
activities that the Bureau recommends based on an individualized risk
and needs assessment to earn Time Credits. An inmate will not be
considered to be successfully participating if that inmate refuses to
participate in or otherwise violates conditions, rules, or requirements
of EBRR programs or PAs recommended based on the inmate's risk and
needs assessment. However, temporary interruptions in participation
that are unrelated to an inmate's refusal to participate or other
violation of programming requirements, or that are authorized by the
Bureau, such when a recommended program or activity is unavailable or
at full enrollment, will not affect the inmate's ability to earn Time
Credits.
If an eligible inmate refuses to participate in the recommended
program or activity, engages in misconduct that results in removal from
the program or activity through placement in restrictive housing, or
disrupts or fails to follow the conditions, parameters, or rules of the
program or activity, accrual of Time Credits is paused until the inmate
complies with programming or completes the disciplinary sanction. This
methodology is intended to guide inmates back to the appropriate pro-
social goals of programming and act as a deterrent for future
misconduct, giving inmates a direct incentive to maintain clear conduct
(behavior clear of inmate disciplinary infractions under 28 CFR part
541).
By clarifying the method for awarding Time Credits in this manner
to ensure it furthers Congressional intent of the statute, the Bureau
hopes to increase the amount of FSA Time Credits that may be awarded to
eligible inmates.
COMMENT: FSA Time Credits should be earned for programs
successfully completed on or after December 21, 2018, the date of the
enactment of the First Step Act, instead of January 15, 2020, as
indicated in the proposed rule.
More than 150 commenters raised this issue, including Senator
Sheldon Whitehouse (D-RI) and Senator John Cornyn (R-TX), who wrote:

The Act provides that ``[a] prisoner may not earn time credits
under this paragraph for an evidence-based recidivism reduction
program that the prisoner successfully completed . . . prior to the
date of enactment of this subchapter.'' 18 U.S.C. 3632(d)(4)(B). . .
. The proposed rule, however, states that an individual may only
earn time credits for programs ``successfully completed on or after
January 15, 2020''--more than a year after the date of enactment.
Nor does the proposed rule explain why individuals are not eligible
to earn time credits for programs completed between December 21,
2018 and January 15, 2020.

Congressman Hakeem Jeffries (D-NY) also commented on this issue,
opining that the regulation's proposed start date for earning time
credits of January 15, 2020, ``serves no clear purpose and is
inconsistent with the text of the First Step Act, which states that
credit may not be earned for programs completed prior to the date of
enactment of this subchapter, which was December 21, 2018.''
RESPONSE: As the commenters correctly note, the FSA explicitly
states that Time Credits may not be earned for participation in
programming prior to the date of the FSA's enactment. The statute is
silent, however, as to the specific date on which inmates should begin
to earn Time Credits. Instead, the statute expressly contemplates a
phased-in approach and sets specific timelines and benchmarks for
implementation.\1\ This phased-in approach is appropriate and
warranted, given that the FSA has been the most impactful congressional
action taken concerning the Bureau of Prisons in recent years,
requiring major changes to existing systems and processes, the
development of new systems, and changes that apply to approximately
130,000 current inmates.
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\1\ See 18 U.S.C. 3621(h)(1)(C), referring to the ``risk and
needs assessment tools necessary to effectively implement the System
over time,'' and sec. 3621(h)(2)(A), requiring that EBRR Programs
and PAs be provided ``before the date that is 2 years after the date
on which the Bureau of Prisons completes a risk and needs assessment
for each prisoner. . . .'' The Bureau completed risk and needs
assessments for every inmate in Bureau custody on January 15, 2020,
and, therefore, as indicated by the FSA, had until January 15, 2022,
to ensure that EBRR Programs and PAs are provided to eligible
inmates in Bureau custody. The Bureau was already providing those
programs and activities to eligible inmates well in advance of that
date.
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Under this phased-in approach, the Attorney General was required to
develop and release the risk and needs assessment system within 210
days from the date the FSA was signed into law, December 21, 2018. The
new risk and needs assessment tool, called the Prisoner Assessment Tool
Targeting Estimated Risk and Needs (PATTERN), was subsequently released
on July 19, 2019, in accordance with the FSA. Additional modifications
of PATTERN occurred after feedback was received from external
stakeholders and the FSA-established Independent Review Committee.
The FSA required that as part of the implementation period, within
180 days of the risk and needs assessment system's release date, the
Bureau would conduct initial risk and needs assessments for the inmate
population and begin expanding the EBRR Programs and PAs necessary to
effectively implement the system.\2\ The Bureau assigned an initial
PATTERN risk level to each inmate by the statutory deadline of January
15, 2020. And, notably, the Bureau implemented the FSA's directive at
18 U.S.C. 3621(h)(2)(A), to assign inmates to EBRR Programs or PAs by
January 15, 2022 (two years after the date by which the agency
completed risk and needs assessments for all inmates) well before that
date.
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\2\ See 18 U.S.C. 3621(h)(1).
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Because the FSA contemplates a phase-in period during which the
risk and needs assessment system could be developed, and because the
FSA is silent regarding a specific date when eligible inmates must
begin earning Time Credits, the Bureau exercised its discretion and
adopted the position in the proposed rule that it would be reasonable
for the Bureau to begin allowing inmates eligible under the FSA to earn
FSA Time Credits after the risk and needs assessment and relevant
programming were established, i.e., on January 15, 2020, the date on
which initial evaluations under the new risk and needs assessment
system were completed. However, in light of the comments submitted, the
Bureau acknowledges that because the FSA is silent regarding a specific
date when eligible inmates must begin earning Time Credits, yet
explicitly prohibits the earning of Time Credits for participation
prior to the date of enactment, the statute could also be interpreted
to allow for eligible inmates to earn Time Credits as of December 21,
2018, the date of enactment of the FSA.

[[Page 2708]]

The case law on this issue is mixed, but some courts have concluded
that this reading is in fact the better one. With regard to
participation in programming completed after the date of the FSA's
enactment, but before completion of all inmate risk and needs
assessments on January 15, 2020, some courts have held that eligible
inmates should be awarded FSA Time Credits in addition to the pre-FSA
incentives already offered by the Bureau. Courts in the Districts of
New Jersey and Oregon have directed the Bureau to award Time Credits
under the FSA for the successful completion of programs and activities
occurring before January 15, 2020, but on or after December 21, 2018,
the FSA's date of enactment. See, e.g., Cazares v. Hendrix, 20-cv-2019
(D. Or. Nov. 9, 2021); Goodman v. Ortiz, 2020 WL 5015613, at *6
(D.N.J., Aug. 25, 2020) (holding inmates are currently entitled to FSA
Time Credits that have been properly earned); Hare v. Ortiz, 2021 WL
391280, at *7 (D.N.J. Feb. 4, 2021) (limiting award of Time Credits to
those earned for programs completed on or after the date of enactment
of the FSA); Gallo v. Ortiz, Civ. No. 20-16416 (D.N.J., filed Feb. 16,
2021) (District Court required the Bureau to calculate Time Credits
based on 2018 date).\3\ Awarding Time Credits as of the date of
enactment may also be more consistent with the FSA's goals of reducing
recidivism through participation in programming and activities, and
allowing inmates to work towards early release. From a fairness
perspective, the Bureau also acknowledges that an inmate who has been
consistently participating in programming, such as working to obtain
his or her GED while the FSA was in effect, between December 21, 2018
(the date of the enactment of the FSA), and January 15, 2020 (the date
risk and needs assessments were completed on all Bureau inmates),
should be rewarded for that effort.
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\3\ Most courts that have analyzed this issue, however, have
found it reasonable for the Bureau to begin awarding Time Credits
for successful completion on or after January 15, 2020, as opposed
to holding that inmates are entitled to FSA Time Credits for
successful completion of EBRR Programs and PAs occurring before that
date but on or after December 21, 2018. See, e.g., Cohen v. United
States, No. 20-cv-10833, 2021 WL 1549917, at *6 (S.D.N.Y. Apr. 20,
2021) (``[T]he statute does not require the BOP to begin awarding
ETCs [earned time credits] during the phase-in period.''); Kennedy-
Robey v. Warden, FCI Pekin, No. 20-cv-1371 (C.D. Ill. Mar. 2, 2021)
(ECF No. 14) (``Not only is the BOP's decision to delay awarding
credits permitted under the statute, the BOP has legitimate reasons
for desiring to do so.''); Llewlyn v. Johns, No. 5:20-cv-77, 2021 WL
535863 (S.D. Ga. Jan. 5, 2021); Herring v. Joseph, No. 4:20-CV-249,
2020 WL 3642706, at *1 (N.D. Fla. July 6, 2020); Holt v. Warden,
4:20-CV-04064-RAL, (D.S.D. May. 13, 2021; Fleming v. Joseph, No.
3:20CV5.990-LC-HTC, 2021 WL I66936I (N.D. Fla. Apr. 7, 2021) (report
and recommendation). See also Bowling v. Hudgins, 2020 WL 1917490
(N.D. Va. Apr. 20, 2020); Allen v. Hendrix, 2020 WL 890396 (E.D.
Ark. Feb. 24, 2020).
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While the Bureau continues to consider the FSA amenable to the
interpretation reflected in the proposed rule, it acknowledges that the
statute is ambiguous, and in light of the FSA's purposes and fairness
considerations, it exercises its discretion to adopt the reading urged
by the majority of commenters. Therefore, the Bureau amends this final
rule to allow inmates eligible under the First Step Act to receive
retroactive Time Credits for programming and activities they
participated in starting on December 21, 2018, the date of the FSA's
enactment. In determining how to award FSA Time Credits during the
period before all individualized risk and needs assessments had been
completed, the Bureau faces administrative challenges. Consistent with
the phased-in approach contemplated by the FSA, the Bureau did not have
mechanisms in place to methodically track participation in EBRRs and
PAs until January 15, 2020, because comprehensive uniform tracking
codes did not exist. In addition, it was not until that date that the
Bureau had completed individualized risk and needs assessments for
every inmate--and thus had a basis to conclude that there was an
evidence-based reason to assign a particular program to, or recommend
particular activities for, an inmate in order to reduce a particular
inmate's risk of recidivism. Thus, in many instances, inmates were
participating in programs for reasons other than addressing a
criminogenic need.
Due to these administrative difficulties, for inmates participating
in programming after the date of the FSA's enactment, but before the
date that Bureau had completed all risk and needs assessments (December
18, 2018, to January 14, 2020), it is not feasible for the Bureau to
connect individual inmate participation in programming to
individualized risk and needs assessments, since the risk and needs
assessment tool did not exist until well after the date of the FSA's
enactment. Instead, for inmate participation in programming during this
period of time, the Bureau will exercise its discretion to award FSA
Time Credits to inmates otherwise deemed eligible under the First Step
Act by applying the same criteria as that applied to inmate
participation in authorized EBRR programs or PAs recommended based on a
risk and needs assessment after January 2020 to determine the inmate's
retroactive Time Credit balance. Eligible inmates will be afforded a
presumption of participation for the period between December 21, 2018,
and January 14, 2020 and be awarded Time Credits accordingly. Inmates
will not receive credit for any period in which they were in a special
housing unit, in a designation status outside the institution,
temporarily transferred to the custody of another Federal or non-
Federal government agency, in mental health/psychiatric holds (either
court-ordered mental health/psychiatric evaluations or situations in
which mental health or psychiatric evaluation or treatment require an
inmate to be designated outside or away from the inmate's ``home''
facility within the Bureau), or for refusing mandatory programming, as
further explained below.
COMMENT: There are no safeguards in the risk and needs assessment
system to prevent racial discrimination or racial disparities.
Several commenters were concerned about the potential for racial
and ethnic biases or disparities in the risk and needs assessment tool
used by the Bureau of Prisons.
RESPONSE: The Department of Justice issued the Risk and Needs
Assessment System (RNAS) mandated by the First Step Act, known as
PATTERN, on July 19, 2019. See The First Step Act of 2018: Risk and
Needs Assessment, U.S. DEP'T OF JUSTICE: OFFICE OF THE ATTORNEY
GENERAL, <a href="https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system.pdf">https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system.pdf</a> (July 2019). The Department's
release of PATTERN was followed by a comment period during which the
Department received approximately 200 comments and statements and held
two listening sessions. On November 19, 2019, the Attorney General met
with the Independent Review Committee (IRC) created by Section 107 of
the FSA to discuss proposed changes to PATTERN, as required by 18
U.S.C. 3632.
The Attorney General then announced enhancements to PATTERN in a
document entitled The First Step Act of 2018: Risk and Needs Assessment
System--UPDATE, <a href="https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system-updated.pdf">https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system-updated.pdf</a> (January 2020)
(2020 Update). In this 2020 Update, and in response to concerns arising
from potential racial disparities, the Department instituted several
recommended changes to the tool. Later, in 2021, the Department also
implemented a more standardized

[[Page 2709]]

process for inputting scores into the risk and needs system, and the
Bureau will continue to ensure that necessary precautions are taken to
ensure consistent, objective application for all inmates in accordance
with the published schema.
The 2021 Annual Review and Revalidation of the First Step Act Risk
Assessment Tool report confirmed the predictive and dynamic validity of
PATTERN, but expressed the concern that differences in race and
ethnicity might affect predictions of risk for recidivism. The Justice
Department takes seriously its responsibility under the First Step Act
to annually ``review, validate, and release publicly on the Department
of Justice website the risk and needs assessment system,'' and ``. . .
to identify any unwarranted disparities, including disparities among
similarly classified prisoners of different demographic groups . . .''
18 U.S.C. 3631(b)(4)(E). The Department will continue to meet this
mandate, to rigorously evaluate any risk assessment tool, including
through the use of outside experts, and to take all steps possible to
address and mitigate against racial bias or other disparities.
As part of that compliance, the Department will publish annually
(1) for each disqualifying offense, data on how many individuals from
each racial and/or ethnic group were ineligible to earn Time Credits;
(2) for each disqualifying prior federal conviction, data on how many
individuals from each racial and/or ethnic group were ineligible to
earn Time Credits; (3) for all other disqualifying prior convictions,
data on how many individuals from each racial and/or ethnic group were
ineligible to earn Time Credits; (4) data on how many individuals from
each racial and/or ethnic group were eligible to earn Time Credits; and
(5) how many individuals from each racial and/or ethnic received risk
and needs assessment score classifications of ``high,'' ``medium,''
``low,'' and ``minimum'' based on their most recent assessment.
COMMENT: The Bureau does not have the resources to implement the
FSA Time Credits program appropriately.
Several commenters were concerned about the Bureau's ability to
implement the FSA Time Credits program. One commenter, for example,
stated that ``the average course that is offered by BOP is not listed
on the list for reentry courses, some of which are college/
correspondence courses that inmates have to pay for out of pocket. As
for the courses that are listed, they are not even offered at this time
because inmates are the teachers of them, and COVID does not allow
inmates to teach them at this time. Many inmates are returning home
now, not having had any reentry courses--not to their own fault.''
Other commenters mentioned long waitlists and other scarcity of
resource issues.
RESPONSE: The Bureau recognizes the significant impact that the FSA
will have on inmate programming, and notes that additional appropriated
funding has been directed toward FSA implementation. These additional
resources will be used to add to existing programs and meet the FSA's
direction that the Bureau encourage and increase inmate programming
participation.
Before the enactment of the FSA, the Bureau already offered a wide
variety of programs and activities designed to prepare inmates for
release, educate them, and provide them with substance abuse disorder
and mental health treatment. The Bureau has always endeavored to focus
on increasing the breadth and depth of its programming for inmates and
build greater capacity for inmate participation in programming, and the
FSA provides further statutory support for that mission. To that end,
the Bureau has asked, and will continue to ask, Congress to authorize
funding and staffing for those purposes, and will endeavor to fill
staff positions as necessary to increase and enhance inmate
programming.
In The First Step Act of 2018: Risk and Needs Assessment System--
UPDATE, U.S. DEP'T OF JUSTICE: OFFICE OF THE ATTORNEY GENERAL, <a href="https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system-updated.pdf">https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system-updated.pdf</a> (January 2020) (2020 Update), the
Department indicated that it had received feedback expressing concerns
about the Bureau's programming capacity. Id. at 18. The issue raised by
this feedback to the Department is substantially similar to concerns
raised by the commenters on the Bureau's proposed rule.
In response to the feedback discussed in this 2020 Update, the
Department described the waitlist process for inmate programming,
indicating that that process is meant to ensure that inmates are
``enrolled in needed courses at the appropriate times in their
incarceration,'' and that ``case management and programming staff
monitor these lists based on inmate need and release date/plans, to
ensure relevant programs are completed in appropriate timeframes.'' Id.
The Department also described the ongoing expansion of Federal Prison
Industries and the Resolve Program (providing trauma treatment).
However, the Department also noted:

As part of the FSA implementation, the BOP is assigning codes to
approved evidence-based recidivism reduction programs and productive
activities to enable tracking and monitoring of their capacity and
use. BOP will also begin assigning inmates to specific programs to
address identified needs, which will allow it to further examine
inmate interest and program capacity. Based upon these changes, BOP
can expand or contract capacity consistent with the inmate needs and
interests.

Id. The Department also noted in the 2020 Update that the Bureau had
``already begun expanding programs and hiring staff to deliver''
further necessary programming, and that although the FSA, issued in
2018, had ``not come with appropriated funds in [fiscal year] FY 2019 .
. . BOP had taken the initiative to adjust funding within its budget to
cover a variety of targeted FSA activities.'' Further, for FY 2020,
approximately $116 million was authorized to allow the Bureau to expand
evidence-based reentry programs, capacity for prerelease custody,
medication-assisted treatment (MAT) for opioid use disorder nationwide,
information technology services for inmates, and evaluation of programs
and services. Id. at 21-22.
Additionally, in the 2020 Update, the Department noted that to
facilitate implementation of the FSA, the Bureau had increased staffing
at female institutions and enhanced male and female trauma treatment
and vocational training offerings. The Bureau also implemented a
variety of hiring strategies to address staffing shortfalls, and
continues to do so. Id. at 24. Therefore, while the Bureau recognizes
that resources have been strained, future funding allotments will
enhance the Bureau's course offerings and serve to bolster the Bureau's
resources, improving its ability to carry out the FSA Time Credits
program across all Bureau facilities.
COMMENT: FSA Time Credits should be awarded for participation in
UNICOR, online or correspondence college courses, religious services,
more time for RDAP, and other programs and activities.
Several commenters suggested that the list of EBRR Programs and PAs
should be expanded to include participation in, or a greater amount of
Time Credits allowable for participation in, UNICOR and prison jobs,
online or correspondence courses (including college courses), religious
services, the Residential Drug Abuse Treatment Program (RDAP), and a
variety of other programs, courses, and activities.

[[Page 2710]]

For instance, one commenter indicated that while the requirement to
successfully complete a program before earning Time Credits ``may make
sense for educational classes, certificate-based programs, or fixed
length productive activities, it should not apply to prison jobs that
would require ongoing accumulation of Time Credits. A prison job is not
a `program to complete,' has no set duration, and its success is based
on continued employment and supervisor evaluations.''
Another commenter suggested that those ``participating in the
Residential Drug[] Abuse Program (RDAP), should receive (16) program
hours per day, 2 eight-hour program days for 1 proposed day, . . .
[because] RDAP participants `live' in a therapeutic community.''
Additionally, Senator Sheldon Whitehouse (D-RI) and Senator John
Cornyn (R-TX) commented as follows:

As BOP finalizes and implements its proposed rule, it should
ensure that individuals are assigned to categories of programs that
meet their needs, rather than specific programs, to allow for
maximum participation in credit-earning EBRRs and PAs. . . . Each
program at a facility should be appropriately categorized, including
faith-based programs. Such flexibility will ensure that individuals
can freely choose to participate or not participate in faith-based
options. It is also critical to allow for greater program access as
BOP expands its offerings, as some programs have limited capacity or
may not be offered at particular facilities.

RESPONSE: The Bureau agrees with these commenters, and has
structured its programs and work assignments to promote participation
and flexibility. New funding allotments will enhance the Bureau's
course offerings, largely by permitting it to increase capacity through
hiring additional staff, and will also serve to bolster the Bureau's
resources, thereby improving its ability to carry out the FSA Time
Credits program. The Bureau began to enhance programming immediately
after the FSA's enactment, using then-current appropriations from FY
2019 not allotted specifically for FSA implementation, and continued to
grow its programming offerings with budget allotments as authorized
from FY 2020 appropriations.
In The Attorney General's First Step Act Section 3634 Annual
Report, U.S. DEP'T OF JUSTICE: OFFICE OF THE ATTORNEY GENERAL, <a href="https://www.bop.gov/inmates/fsa/docs/20201221_fsa_section_3634_report.pdf">https://www.bop.gov/inmates/fsa/docs/20201221_fsa_section_3634_report.pdf</a>
(December 2020) (2020 Annual Report), the Bureau established a review
process to consider externally submitted programs for potential
inclusion on the approved EBRR Program/PA list. Id. at 17. The Bureau
currently engages in partnerships with external organizations to
recruit community volunteers to assist with inmate reentry and
educational programs. Consistent with the goal of supporting and
expanding volunteer activities at all institutions, on June 25, 2019,
the Bureau provided guidance to all Wardens about the importance and
use of partnerships under the FSA. Specifically, the Assistant
Directors for the Office of General Counsel and Reentry Services
Divisions issued guidance on collaboration with outside organizations
pursuant to the FSA. This memorandum provided information on the FSA's
statutory requirements, the Bureau process for establishing
partnerships, equitable treatment of similar organizations, and
tracking of partnerships.
On September 19, 2019, voluntary partnerships were in place at all
122 Bureau institutions. During FY 2019, 5,939 individuals volunteered
110,489 hours at various institutions. During FY 2020 (as of September
10, 2020), 5,978 volunteers and contractors had provided 157,752 hours
at various institutions. The increase in volunteer hours can, in part,
be attributed to staff efforts to increase partnerships pre-COVID-19,
and changes made to the Bureau volunteer tracking system. Id. at 37.
In 2020, the Bureau created unique identifier codes for every
Bureau program. These codes allow Bureau to track inmates' program
enrollment, participation, and completion. This information can then be
compared to needs assessment information and used as a method for
assessing capacity. Unfortunately, because of the global pandemic, the
Bureau has not been able to program as it would under normal
conditions.
The Bureau assesses 12 broad need areas plus dyslexia, and programs
are matched to each of these needs. As normal operations resume, the
Bureau will be able to accurately track whether inmates sign up for the
programs that match their needs, and whether the programs are offered
with enough capacity that inmates are able to complete them at the
appropriate times during their sentences. While the Bureau's current
list of over 70 EBRR Programs and PAs addresses most areas of need,
some improvements have been made even during the pandemic. For example,
the Bureau created better quality and more standardized materials that
provide more consistent program delivery. Additionally, a more
intensive program addressing criminal cognition is in development to
account for this highly prevalent need in Bureau facilities. Id. at 19-
20.
Also, several programs and activities mentioned by the commenters
as items that should be included in the list of approved programs are,
in fact, already on the list. The First Step Act Approved Programs
Guide, available on the Bureau's website at <a href="https://www.bop.gov/inmates/fsa/docs/2021_fsa_program_guide.pdf">https://www.bop.gov/inmates/fsa/docs/2021_fsa_program_guide.pdf</a> (Programs Guide), contains
a program description, institution locations, needs addressed by each
program offered, and the department responsible for program delivery
(e.g., Education, Psychology).
The Programs Guide indicates that offered programs and activities
``will vary based on the needs of the sentenced population'' at a given
location. This helps to explain, in part, why some programs and
activities may not be available at all facilities. However, as the
Bureau continues to expand its offerings, the Programs Guide continues
to expand, and will be updated annually.
With regard to several programs and activities specifically
mentioned by commenters:
UNICOR: Employment in Federal Prison Industries (FPI, also known by
its trade name, UNICOR) is included in the Programs Guide as an EBRR
Program.
RDAP: The Residential Drug Abuse Treatment Program (RDAP), is
included in the Program Guide as an EBRR Program.
Online or correspondence college courses: The Programs Guide
includes Post-Secondary Education programming, and explains that
``[c]ollege level classes are provided by credentialed instructors from
the community who deliver coursework leading to the Associates or
Bachelors degree,'' and that ``[s]pecific prerequisites for each
program are determined by the school providing the service.'' See
Programs Guide at 23. This program, delivered by Education staff or
appropriately credentialed contractors, allows for online or
correspondence college courses, as authorized and credentialed by the
Bureau's Education staff.
Religious services and programming: The Programs Guide describes
several faith-based programs and activities currently available at all
Bureau facilities, including the Threshold Program, a faith-based
reentry program (id. at 32), and Embracing Interfaith Cooperation, a PA
which fosters interfaith dialogue and understanding to counter
religious discrimination and extremism (id. at 36).
Also, the Bureau's longstanding Life Connections Program (LCP), a

[[Page 2711]]

residential, multi-faith-based reentry program open to inmates of all
religious traditions and those with no faith affiliation, uses contract
partners to provide religious services, while community volunteers
serve as mentors to inmate participants. This program is available at
six Bureau facilities. See 2020 Annual Report, supra, at 37-38.
As the Bureau's FSA implementation budget appropriations increase
and necessary COVID-19 pandemic-related health and safety restrictions
ease, the Bureau will continue its efforts to expand EBRR programming
and PA offerings available at Bureau facilities for eligible inmates.
Furthermore, as noted above, the Bureau has changed the proposed
regulation to a more inclusive model, whereby FSA Time Credits may be
earned if an eligible inmate is successfully participating in EBRR
Programs and PAs recommended based upon his or her risk and needs
assessment. Also, inmates will not be penalized if specifically
recommended EBRR Programs or PAs are unavailable to them or at full
enrollment at their facilities. As the Bureau continues to evaluate
these and other types of programs and activities, the list of EBRR
Programs and PAs for which inmates may earn FSA Time Credits will
likewise increase.
COMMENT: FSA Time Credits should be earned for successful
participation, not only for successful completion.
Many commenters opined that FSA Time Credits should be awarded on
an ongoing basis, during participation in EBRR programming and PAs,
instead of after successful completion of an EBRR Program or PA. One
commenter wrote that

[b]y focusing only on completion, BOP diminishes the value of
participation and weakens the incentive structure Congress enacted.
Indeed, there are myriad situations where people would successfully
participate in an approved program and--through no fault of their
own--be prevented from, or delayed in, completing it. Transfers,
program resource and staffing limitations, and facility movement
restrictions all impact program completion, as do length of
sentence, program availability, and waitlists. Individuals have no
control over completion if, for example, their facility is locked
down, or if programs are indefinitely suspended due to a pandemic.
Congress created the earned time credit system to encourage personal
responsibility. BOP's all-or-nothing rule that fails to acknowledge
participation is inconsistent with this intent. BOP should revise
the proposed rule to allow individuals who successfully participate
in programming to earn time credits.

RESPONSE: The Bureau agrees with these comments. As indicated
previously, the Bureau is altering and expanding its method for
awarding Time Credits.
The concern of the commenters regarding participation in
programming echoes the Bureau's longstanding policy of encouraging
inmate reentry programming and productive activities throughout each
inmate's incarceration, which is consistent with the FSA's goal of
attaining maximum recidivism reduction. The Bureau will continue to
emphasize the need for full and successful participation in EBRR
programs and PAs, as recommended for each inmate, to achieve the
maximum award of FSA Time Credits to the maximum number of eligible
inmates.
Toward that end, the Bureau has developed the simpler model which
it now adopts for the FSA Time Credits program. Under this model, each
eligible inmate earns Time Credits while participating in recommended
EBRR Programs and PAs. Time Credits for successful participation are
awarded at the end of each thirty-day period. By altering the scheme
for awarding Time Credits in this manner, the Bureau hopes to increase
the amount of FSA Time Credits that may be awarded to the maximum
number of eligible inmates. Inmates must participate in all programs
and activities that the Bureau recommends based on an individualized
risk and needs assessment to be considered to have successfully
participated in recommended EBRR Programs and PAs for purposes of
earning Time Credits.
It is important to note, however, that temporary interruptions in
participation that are unrelated to an inmate's refusal or other
violation of programming requirements, such as the unavailability of a
recommended program or activity or its full enrollment, or
interruptions authorized by the Bureau, will not affect the inmate's
ability to earn Time Credits. An inmate's ability to earn FSA Time
Credits will be affected if the inmate refuses to participate in the
recommended programming or productive activity, engages in misconduct
that results in removal from the program or activity through placement
in restrictive housing, or disrupts or fails to follow the conditions,
parameters, or rules of the activity. In the event that the inmate is
found to have committed any of these violations, accrual of Time
Credits is paused until the inmate complies with programming
conditions, parameters, or rules, or completes the disciplinary
sanction.
For, example, the Bureau may permit an inmate to continue earning
FSA Time Credit if programming is briefly interrupted due to an
instructor's illness, which results in the instructor canceling class
for the day. Another possible example might be a brief interruption
caused by an inmate requiring to be absent from programming for a day
or two due to illness or medical treatment. In such circumstances, the
Bureau may review whether or not the illness or medical treatment is
attributable to factors over which the inmate may exercise control
(possible drug overdose, injuries sustained while fighting, etc.),
whether the conduct is a disciplinary offense, or whether it is
excusable behavior and therefore may be authorized. The Bureau will
strive to reach an equitable result when calculating time in program
participation and circumstances both beyond and within the inmate's
control.
Accordingly, unless the inmate formally declines recommended
programming addressing his or her unique needs, or is not participating
in any activities, the assumption is that the eligible inmates will be
earning Time Credits and fully participating in recommended
programming. The regulation indicates that accrual of Time Credits may
be suspended in certain situations when the inmate is unable to
participate in recommended programming, including, but not limited to,
situations such as:
<bullet> Placement in a Special Housing Unit;
<bullet> Designation status outside the institution (e.g., for
extended medical placement in a hospital or outside institution, court
appearances, an escorted trip, a furlough, etc.);
<bullet> Temporary transfer to the custody of another federal or
non-federal government agency (e.g., on state or federal writ, transfer
to state custody for service of sentence, etc.);
<bullet> Placement in mental health/psychiatric holds; or
<bullet> ``Opting out'' (choosing not to participate in the EBRR
programs or PAs that the Bureau has recommended based on the inmate's
individualized risk and needs assessment).
Inmates who decline to participate in a recommended voluntary EBRR
or PA (i.e., inmates that ``opt out'') will not be considered to be
refusing a program assignment for the purposes of disciplinary
prohibited act code violations, but will merely be excluded from
benefits or privileges of FSA Time Credit Program participation. For
example, declining to take a recommended anger management course will
prevent an inmate from earning FSA Time Credits, but will not in itself
constitute a disciplinary prohibited act code violation. Inmates that
refuse a formal assignment,

[[Page 2712]]

however, will also be held responsible for any attendant disciplinary
prohibited act code violations, e.g., failing to report to institution
work detail.\4\
---------------------------------------------------------------------------

\4\ See 28 CFR 541.3, Table 1--Prohibited Acts and Available
Sanctions: Moderate Severity Level Prohibited Acts, code 306:
``Refusing to work or to accept a program assignment.''
---------------------------------------------------------------------------

COMMENT: FSA Time Credits should be applied to an inmate's transfer
to supervised release (to shorten a term of imprisonment).
Some commenters indicated that they were concerned that Time
Credits would not, in fact, be applied to transfer to supervised
release at all, but instead might only be applied to prerelease
custody, noting that the proposed rule ``does not address the
procedures for determining whether an individual inmate will have FSA
Time Credits applied toward prerelease custody, early transfer to
supervised release, a combination of both, or neither; this proposed
rule only addresses the procedures for earning, awarding, loss, and
restoration of FSA Time Credits.''
RESPONSE: As stated, under the FSA, an eligible inmate who
successfully participates in an EBRR Program or PA recommended by staff
based on the inmate's risk and needs assessment may earn FSA Time
Credits to apply toward prerelease custody or transfer to supervised
release. Eligible inmates may earn 10 days of Time Credits (and, if
maintaining a low or minimum risk status, an additional 5 days of Time
Credits) for every 30-day period of successful participation in EBRR
Programs or PAs.
However, under the FSA (18 U.S.C. 3624(g)), even if earned, Time
Credits may not be applied to prerelease custody until:
<bullet> The amount of earned Time Credits is equal to the
remainder of the inmate's imposed term of imprisonment;
<bullet> The inmate has demonstrated a reduced risk of recidivism
or maintained a minimum or low recidivism risk during his or her term
of imprisonment;
<bullet> The remainder of the inmate's imposed term of imprisonment
has been computed under applicable law (e.g., Good Conduct Time Credit
under 28 CFR part 523 has been applied, eligibility for early release
consideration under Residential Drug Abuse Treatment Program
regulations in 28 CFR part 550 has been evaluated, etc.); and
<bullet> The inmate has been determined to be at a minimum or low
risk of recidivating based on his or her last two assessments, or has
had a petition to be transferred to prerelease custody approved by the
warden.
Similar requirements exist under the FSA for application of earned
Time Credits to transfer to supervised release. Time Credits may not be
applied to transfer to supervised release under 18 U.S.C. 3624(g)
unless:
<bullet> The amount of earned Time Credits is equal to the
remainder of the inmate's imposed term of imprisonment;
<bullet> The inmate's sentence includes a period of supervised
release to be served after his or her term of imprisonment;
<bullet> The inmate's latest risk and needs assessment shows that
he or she is at a minimum or low risk of recidivating; and
<bullet> The application of Time Credits would not result in
starting the period of supervised release more than 12 months before he
or she would otherwise be eligible to do so (i.e., any amount of earned
Time Credits in excess of 12 months would be applied to prerelease
custody).
See Nathan James, U.S. Congressional Research Service, The First
Step Act of 2018: An Overview (2019), at 5-6.
The Bureau assures commenters that FSA Time Credits will be applied
to early transfer to supervised release, as authorized by the FSA in 18
U.S.C. 3632(d)(4)(C) and 18 U.S.C. 3624(g). See 2020 Annual Report at
39-44. The Bureau intends to adhere to the parameters of the FSA to
permit application of Time Credits toward transfer to supervised
release pending development of policy, in individual cases as
appropriate.
COMMENT: Earning FSA Time Credits should continue in Residential
Reentry Centers and/or while in home confinement.
Many commenters raised an issue that was articulated by Senator
Sheldon Whitehouse (D-RI) and Senator John Cornyn (R-TX) as follows:

The proposed rule also provides that ``FSA Time Credits can only
be earned while an inmate is in a Bureau facility, and will not be
earned if an inmate is in a Residential Reentry Center or on home
confinement.'' The proposed rule does not cite to any authority for
this restriction, and this interpretation is not consistent with the
goals of the First Step Act.
Allowing individuals to earn time credits while in RRCs is
authorized by the First Step Act. The Act provides that ``[t]ime
credits earned . . . by prisoners who successfully participate in
recidivism reduction programs or productive activities shall be
applied toward time in prerelease custody or supervised release.''
It defines ``prisoner'' as ``a person who has been sentenced to a
term of imprisonment pursuant to a conviction for a Federal criminal
offense, or a person in the custody of the Bureau of Prisons.''
Because ``[p]re-release inmates at an RRC remain in Federal
custody while serving a sentence imposed by a U.S. District Court or
DC Superior Court,'' they are ``prisoners'' for the purposes of the
First Step Act. Nor does the First Step Act distinguish between
``prisoners'' who are serving their sentence in a BOP institution,
in an RRC, or on home confinement in describing the time credit
program. By its own terms, the statute allows BOP to award time
credits to individuals incarcerated in an RRC toward time in
supervised release.
Allowing individuals incarcerated in an RRC to earn time credits
by participating in EBRRs would further the purposes of the First
Step Act. RRCs offer substance abuse treatment and other programs
similar to those offered in BOP institutions. There is no reason to
believe that a program offered in an RRC will reduce recidivism any
less than one offered to an individual in prison. In fact, such
programs may be more effective, as individuals are close to release
from custody and can begin putting lessons learned into practice as
they transition home. BOP should revise the proposed rule to allow
individuals to earn time credits while in an RRC.

Congressman Hakeem Jeffries (D-NY) also stated, ``I see no reason
to make individuals in Residential Reentry Centers (RRCs) or in home
confinement ineligible to earn time credits. . . . Congress could have
used a narrower definition or explicitly excluded certain categories of
individuals based on where they serve their sentence, but it chose not
to do so.''
RESPONSE: After carefully considering the comments received, the
Bureau agrees that inmates in prerelease custody--whether in a
residential reentry center (RRC) or on home confinement--are eligible
to earn FSA Time Credits under 18 U.S.C. 3632(d)(4)(A), which they
could presumably apply, under 18 U.S.C. 3632(d)(4)(C), toward transfer
to supervised release.
The practical effect of allowing eligible inmates to keep earning
Time Credits while in prelease custody (RRCs) will likely be limited,
however, for several reasons. First, the Bureau intends to transfer
eligible inmates who satisfy the criteria in 3624(g) to supervised
release to the extent practicable, rather than to prelease custody. The
Bureau therefore anticipates that the total population of eligible
inmates in RRCs or home confinement will be small.
Second, as a practical matter, programming and services for inmates
in RRCs or home confinement will often be provided off-site or by a
third-party provider, which makes tracking successful participation
more difficult. For example, community-based substance use treatment
programs referred to by the Senators in their

[[Page 2713]]

comments are not provided on-site at RRCs, but rather on an outpatient
basis. The Bureau uses a comprehensive inmate information tracking
system that is only accessible to Bureau staff. The Bureau's inmate
information tracking system is not accessible to RRC staff, and
therefore cannot track inmate programming activity when inmates are no
longer in the custody of the Bureau of Prisons.
Third, unlike a prison facility, which is a self-contained unit
under the Bureau's control and supervision that can provide Bureau-
authorized, comparable, and approved programming to all housed inmates,
the breadth of programming available at or through different RRCs, or
in the communities where an inmate may be place in home confinement,
could vary significantly and may not correspond directly to
recommendations based on inmates' most recent risk and needs
assessments.
Given these variables, the Bureau will work on a case-by-case basis
with eligible inmates in RRCs to identify appropriate available
programming for them to earn FSA Time Credits, and will determine how
to best track participation as part of the Bureau's commitment to
ensure the maximum number of FSA Time Credits may be awarded to the
maximum number of eligible inmates. The Bureau will issue guidance on
this topic to ensure consistency in implementation.
COMMENT: All inmates should be eligible for FSA Time Credits
without exclusions.
Several commenters recommended that, as a general matter, any
inmate willing to participate in the FSA Time Credit program should be
eligible for FSA Time Credits. A few individual commenters suggested
more specifically that inmates convicted of particular offenses (as
described above) should be removed from the category of ``ineligible
prisoners,'' as described in 18 U.S.C. 3632(d)(4)(D), and should be
permitted to earn FSA Time Credits for application toward prerelease
custody or transfer to supervised release.
RESPONSE: As noted, 18 U.S.C. 3632(d)(4)(D) describes inmates that
are ``ineligible to receive time credits'' under Subchapter D (the Risk
and Needs Assessment System) if serving a term of imprisonment for
conviction under any of the provisions listed therein. It is outside
the Bureau's authority to alter the exclusions as stated in the FSA.
Some commenters suggested that ``non-violent'' offenses be removed from
the ineligibility exclusions, but did not specify which offenses listed
might be considered ``non-violent'' or otherwise define that term.
Regardless, the statutory exclusions may only be amended by Congress.
Specific offenses: The FSA enumerates 68 offenses for which inmates
who are serving terms of imprisonment are ineligible. Commenters raised
several specific offenses. We note that under the FSA's list of 68
enumerated offenses, the following are included as ones for which
inmates are ineligible if they are serving a term of imprisonment upon
conviction:
<bullet> 18 U.S.C. 2250, relating to failure to register as a sex
offender (see 18 U.S.C. 3632(d)(4)(D)(xxxviii));
<bullet> 18 U.S.C. 2251, relating to the sexual exploitation of
children (see 18 U.S.C. 3632(d)(4)(D)(xxxix));
<bullet> 18 U.S.C. 2251A, relating to the selling or buying of
children (see 18 U.S.C. 3632(d)(4)(D)(xl));
<bullet> 18 U.S.C. 2252, relating to certain activities concerning
material involving the sexual exploitation of minors (see 18 U.S.C.
3632(d)(4)(D)(xli));
<bullet> 18 U.S.C. 2252A, relating to certain activities involving
material constituting or containing child pornography (see 18 U.S.C.
3632(d)(4)(D)(xlii));
<bullet> 18 U.S.C. 2260, relating to the production of sexually
explicit depictions of a minor for importation into the United States
(see 18 U.S.C. 3634(d)(4)(D)(xliii)).
Prior convictions: As stated in the preamble to the proposed rule,
an inmate cannot earn FSA Time Credits if he or she has a disqualifying
prior conviction as specified in 18 U.S.C. 3632(d)(4)(D). In the
interest of clarifying the statement in the proposed rule, a
``disqualifying prior conviction'' would render an inmate ineligible to
earn Time Credits under 18 U.S.C. 3632(d)(4)(D)(li) if the inmate:
1. Had a prior conviction for which he or she served a term of
imprisonment of more than 1 year, for a Federal or State offense, by
whatever designation and wherever committed, consisting of the
following:
<bullet> Murder (as described in 18 U.S.C. 1111),
<bullet> voluntary manslaughter (as described in 18 U.S.C. 1112),
<bullet> assault with intent to commit murder (as described in 18
U.S.C. 113(a)),
<bullet> aggravated sexual abuse and sexual abuse (as described in
18 U.S.C. 2241 and 2242),
<bullet> abusive sexual contact (as described in 18 U.S.C.
2244(a)(1) and (a)(2)),
<bullet> kidnapping (as described in 18 U.S.C. chapter 55),
<bullet> carjacking (as described in 18 U.S.C. 2119),
<bullet> arson (as described in 18 U.S.C. 844(f)(3), (h), or (i)),
or
<bullet> terrorism (as described in 18 U.S.C. chapter 113B);
AND
2. Is currently serving a term of imprisonment of more than 1 year
for an offense described in 18 U.S.C. 3559(c)(2)(F), i.e., a ``serious
violent felony,'' which means either--
(i) a Federal or State offense, by whatever designation and
wherever committed, consisting of the following:
<bullet> Murder (as described in 18 U.S.C. 1111);
<bullet> manslaughter other than involuntary manslaughter (as
described in 18 U.S.C. 1112);
<bullet> assault with intent to commit murder (as described in 18
U.S.C. 113(a));
<bullet> assault with intent to commit rape (as described in 18
U.S.C. 3559(c)(2)(A));
<bullet> aggravated sexual abuse and sexual abuse (as described in
18 U.S.C. 2241 and 2242);
<bullet> abusive sexual contact (as described in 18 U.S.C.
2244(a)(1) and (a)(2));
<bullet> kidnapping (as described in 18 U.S.C. 3559(c)(2)(E));
<bullet> aircraft piracy (as described in 49 U.S.C. 46502);
<bullet> robbery (as described in 18 U.S.C. 2111, 2113, or 2118);
<bullet> carjacking (as described in 18 U.S.C. 2119);
<bullet> extortion (as described in 18 U.S.C. 3559(c)(2)(C));
<bullet> arson (as described in 18 U.S.C. 3559(c)(2)(B));
<bullet> firearms use (as described in 18 U.S.C. 3559(c)(2)(D));
<bullet> firearms possession (as described in 18 U.S.C. 924(c));
<bullet> or attempt, conspiracy, or solicitation to commit any of
the above offenses;
OR
(ii) any other offense punishable by a maximum term of imprisonment
of 10 years or more--
<bullet> that has as an element the use, attempted use, or
threatened use of physical force against the person of another or
<bullet> that, by its nature, involves a substantial risk that
physical force against the person of another may be used in the course
of committing the offense.
The Bureau is cognizant of the strict categorical analysis required
by the Supreme Court in adjudicating whether an offense meets the
elements or residual clause of 18 U.S.C. 3559. As such, the Bureau
after consultation with the Department of Justice will ensure that its
facilities receive updated information as to which federal and state
offenses qualify or are the subject

[[Page 2714]]

of litigation and that inmate records are updated to ensure maximum
participation in credit-earning EBRRs.
Deportable inmates: As the FSA also indicates in 18 U.S.C.
3632(d)(4)(E), an inmate who is subject to a final order of removal
under immigration laws as defined in 8 U.S.C. 1101(a)(17) may not have
FSA Time Credits applied toward prerelease custody or early transfer to
supervised release under 18 U.S.C. 3624(g).
Although the Bureau does not have the authority to award FSA Time
Credits to inmates who are ineligible under the FSA, such inmates may
still earn other benefits for successfully participating in the many
other types of programming offered by the Bureau. Inmates ineligible
for earning or applying FSA Time Credits may still receive incentives
such as increased privileges (commissary, visiting, and telephone) for
participation in EBRR Programs.
COMMENT: Forfeiture penalties for earned Time Credits are too
severe.
Many commenters stated that the proposal to amend the Bureau's
regulations on inmate discipline in 28 CFR part 541 to include
forfeiture of FSA Time Credits as a disciplinary sanction was too
severe. One commenter stated that:

The forfeiture rates would be too harsh on their own, but even
more punitive when combined with other negative consequences for
violations, including limits on future earning and use of time
credits and would be disproportionately severe across all levels of
prohibited acts... Moreover, forfeiture of earned time credits is
not the only consequence an individual would suffer as the result of
a prison infraction. An infraction could also negatively affect an
individual's ability to earn and use time credits in the future by
raising his risk score. . .

Another commenter stated that

The proposed rule provides that to restore credits from prison
rule violations, an individual must first have ``[c]lear conduct for
at least four consecutive risk and needs assessments.''. . . It
could take at least 4 years to complete ``at least four consecutive
risk and needs assessments.'' Yet BOP provides no justification for
requiring clear conduct for this long. Indeed, requiring an
individual to remain infraction-free for at least 4 years is
inconsistent with PATTERN. Under PATTERN, individuals who are
infraction-free for 12 months or more receive no points related to
the recency of an infraction. If PATTERN indicates those with
infractions older than 12 months are no more risky than those with
infractions older than 4 years, it is difficult to understand what
justification BOP would have to require ``clear conduct'' for what
could be at least 4 years.

RESPONSE: The Bureau agrees with these commenters, and has adjusted
the proposed penalties related to FSA Time Credits accordingly. As
stated in the proposed rule, FSA Time Credits may be lost through
inmate discipline procedures described in 28 CFR part 541 only if an
inmate violates the requirements or rules of an EBRR Program or PA. The
FSA authorizes the Bureau to develop procedures for the reduction of
FSA Time Credits for inmates under these circumstances. See 18 U.S.C.
3632(e). Opting out of a program will not result in the forfeiture of
credits, unless failure to complete the program itself constitutes an
infraction (e.g. failing to accept a mandatory work assignment).
The Bureau's proposed amendments to 28 CFR 541.3, Table 1
(Prohibited Acts and Available Sanctions), were intended to resemble
the structure of current sanctions for loss of Good Conduct Time, which
allow for forfeiture in escalating amounts depending on the severity
level of the prohibited act committed. However, in light of the
comments received, the Bureau alters the proposed forfeiture sanctions
to more closely mirror the Good Conduct Time forfeiture sanctions, and
accordingly decreases the amount of FSA Time Credits forfeiture
sanctions for each prohibited act severity level offense by more than
half.
Further, upon review, the Bureau agrees with commenters that it is
inconsistent with the risk and needs assessment methodology to require
clear conduct (behavior clear of inmate disciplinary infractions under
28 CFR part 541) for four consecutive assessments to permit restoration
of forfeited Time Credits, and therefore alters the regulation to
maintain consistency with the Department of Justice risk and needs
assessment methodology--requiring clear conduct for two consecutive
assessments (one year) as a condition of restoring forfeited Time
Credits.
COMMENT: The FSA should be applicable to DC Code Offenders.
The Bureau reopened the comment period of the proposed rulemaking
from October 18, 2021, until November 17, 2021, to solicit public
comment on the limited issue of whether DC Code offenders in Bureau of
Prisons custody are eligible to apply Time Credits under 18 U.S.C.
3632(d)(4), as added by the FSA. 86 FR 57612. We received thirty
submissions during the reopened comment period. However, of those
submissions, only eighteen were comments relating to the limited issue.
Twelve submissions related to issues raised during the proposed rule
comment period in 2020 or to specific circumstances of particular
inmates in Bureau facilities and their eligibility for FSA Time
Credits, rather than the limited issue for which the document reopened
the comment period. As we stated above with regard to submissions
unrelated to the proposed rule, we encourage those with questions
regarding particular inmates to address those questions to staff at
facilities where those inmates are housed, or to the regional offices
with oversight for those facilities.
RESPONSE: The October 18, 2021 document indicated that the proposed
rule would have expressly excluded from time-credit eligibility any
inmate serving a term of imprisonment only for an offense under the
laws of the District of Columbia. The FSA, however, is ambiguous as to
whether those with convictions under the DC Code are eligible to apply
FSA Time Credits through their participation in EBRR programs or PAs.
Some comments pointed to features of the statute's text or history,
suggesting that Congress intended DC Code offenders to be eligible to
apply FSA Time Credits to their sentences. A comment from the Public
Defender Service for the District of Columbia noted that the FSA
defines ``prisoner'' as ``a person who has been sentenced to a term of
imprisonment pursuant to a conviction for a Federal criminal offense,
or a person in the custody of the Bureau of Prisons.'' 18 U.S.C.
3635(4). That definition includes DC Code offenders, who the commenter
pointed out are in Bureau custody under the National Capital
Revitalization and Self Government Improvement Act of 1997, which
requires that ``any person who has been convicted of a felony offense
pursuant to the District of Columbia Code . . . shall be subject to any
law or regulation applicable to persons committed for violations of
laws of the United States consistent with the sentence imposed.'' 111
Stat. 251 at 734; Public Law 105-33, Sec. 11021 (the ``DC
Revitalization Act'').
A comment from Senator Cory Booker (D-NJ) noted that other
unenacted bills addressing similar subjects that preceded the enactment
of the FSA would have defined ``prisoner'' as a person sentenced for a
federal offense. See Corrections and Recidivism Reduction Act of 2016,
H.R. 759, 114th Cong. 8(4) (as introduced Feb. 5, 2015 sub nom.
Recidivism Risk Reduction Act), <a href="https://www.congress.gov/bill/114th-congress/house-bill/759/text/ih">https://www.congress.gov/bill/114th-congress/house-bill/759/text/ih</a> (defining ``prisoner'' as ``a person
who has been sentenced to a term of imprisonment pursuant to a
conviction for a Federal criminal offense''); the Sentencing Reform and
Corrections Act

[[Page 2715]]

of 2015, S. 2123, 114th Cong. 202(b)(8) (as introduced Oct. 1, 2015),
<a href="https://www.congress.gov/bill/114th-congress/senate-bill/2123/text/is">https://www.congress.gov/bill/114th-congress/senate-bill/2123/text/is</a>
(defining ``eligible prisoner'' as ``a prisoner serving a sentence of
incarceration for conviction of a Federal offense,'' with exceptions
for medical and security circumstances and sentences under one month).
But there are other statutory features suggesting Congress may not
have intended the FSA Time Credit program to alter the time that DC
Code offenders spend in Bureau facilities while serving sentences
imposed by the District of Columbia. As noted, the DC Revitalization
Act commits DC Code offenders to Bureau custody, but provides that
these offenders ``shall be subject to any law or regulation applicable
to'' U.S. Code offenders only insofar as those laws or regulations are
``consistent with the sentence imposed.'' (DC Code section 24-101(b).)
While this restriction does not appear to bar DC Code offenders from
earning FSA Time Credits, it does appear to bar them from applying
those credits in a way that would change the duration of their DC-
imposed sentences, i.e., by granting them early supervised release.
Even given this limitation that currently exists by virtue of the DC
Code, it is possible that Congress intended to permit DC Code offenders
to use Time Credits to secure an early transfer to prerelease custody,
which does not change the sentence's duration. But the fact that at
least part of the FSA Time Credit program is inconsistent with the
terms on which the DC Code has committed DC Code felons to Bureau
custody suggests otherwise.
In addition, Congress took care to preclude violent U.S. Code
offenders from using FSA Time Credits to secure an early release from
Bureau facilities, specifying a long list of serious Federal crimes in
18 U.S.C. 3632(d)(4)(D), a conviction for which makes a prisoner
ineligible to earn Time Credits.\5\ Congress's failure to provide an
analogous list of serious DC Code offenses could indicate that Congress
did not intend DC Code offenders to be eligible to apply Time Credits.
Similarly, the FSA states that the Time Credit system does not apply
``with respect to offenses committed before November 1, 1987,'' (see
Section 102(b)(3) of the FSA), which is the date Federal parole was
abolished, but does not contain any like provision for the date DC
parole was abolished (2000). If the FSA is construed to afford DC Code
offenders in Bureau custody a right to apply Time Credits, Congress's
failure to account for the date on which DC parole was abolished would
mean that some DC Code offenders could be eligible for both parole and
the FSA Time Credit program. Congress could have acted to avoid the
overlap of these two programs, and the fact that Congress did not do so
could further suggest that Congress did not intend the FSA to make DC
Code offenders eligible to apply Time Credits.
---------------------------------------------------------------------------

\5\ See, e.g., 164 Cong. Rec. S7642 (daily ed. Dec. 17, 2018)
(statement of Sen. Cornyn) (``There are some who, for example, say
that this legislation will put violent criminals and sex offenders
back on the streets, which is completely false. . . . This bill will
not allow dangerous, violent criminals to be released early. . . .
We have disqualified violent offenders . . . .'').
---------------------------------------------------------------------------

Finally, there is a textual basis for concluding that Congress did
not intend the FSA to make DC Code offenders eligible to use Time
Credits. In Section 105 of the FSA, Congress provided that nothing in
the FSA ``may be construed to provide authority to place a prisoner in
prerelease custody or supervised release who is serving a term of
imprisonment pursuant to a conviction for an offense under the laws of
one of the 50 States, or of a territory or possession of the United
States.'' 18 U.S.C. 3621 Note. As a comment (from the DC Justice Lab,
Democracy Forward Foundation, FAMM, Justice Action Network, National
Association of Criminal Defense Lawyers, Washington Lawyers' Committee
for Civil Rights, and Urban Affairs) noted, it is unclear whether the
District of Columbia is ``one of the 50 States,'' a ``territory,'' or a
``possession'' of the United States. The Bureau agrees that Section 105
is ambiguous; statutory references to States and territories may or may
not be understood to include the District of Columbia, depending on the
statutory context. See, e.g., District of Columbia v. Carter, 409 U.S.
418, 420 (1973). Particularly in light of the statutory features above,
Section 105 could be read to manifest Congress's desire to avoid
interference with non-U.S. Code sentences of offenders who end up in
Bureau custody.
Overall, there is significant ambiguity about whether and to what
extent DC Code offenders are eligible to apply FSA Time Credits under
the statute. A construction of the FSA that would allow DC Code
offenders to apply Time Credits under federal law would create
particular concerns because of the absence of any basis on which to
preclude DC Code offenders convicted of violent crimes from then using
Time Credits. That result would substantially diverge from the FSA
provision that expressly bars federal inmates convicted of any one of a
list of 68 categories of enumerated violent offenses (only one of which
includes any DC Code offenses, and only under certain conditions, see
18 U.S.C. 3632(d)(4)(D)(li)) from receiving FSA Time Credits. Although
the majority of the comments received during the reopened comment
period supported allowing DC Code offenders to earn FSA Time Credits,
they largely failed to address the issue of whether violent DC Code
offenders should be eligible to apply such credits along with non-
violent offenders. A single comment received during the reopened
comment period opposed application of the FSA to DC Code offenders in
Bureau custody, expressing concern that the rule would ``undermine the
criminal justice system and allow these violent offenders to re-enter
society to only most likely commit these violent crimes again.'' The
lack of additional discussion in the comments regarding this issue is
particularly problematic because the overwhelming majority of DC
offenders in Bureau custody are serving sentences for violent offenses
analogous to the list of offenses that disqualify federal offenders
from receiving FSA Time Credits.
The Bureau is also concerned that adopting a reading of the FSA to
permit DC Code offenders to leave Bureau facilities before they have
served their DC-imposed sentences stands in some tension with other
provisions of the DC Code. In other circumstances, where the length of
a DC Code offender's sentence would be reduced, there are specific
authorities in the DC Code to authorize such actions. For example, the
DC Code specifies that offenders sentenced to imprisonment for felonies
committed after August 5, 2000, ``may receive good time credit toward
service of the sentence only as provided in 18 U.S.C. 3624(b)'' (DC
Code section 24-403.01(d)); that those sentenced to imprisonment after
August 5, 2000, ``for a nonviolent offense may receive up to a one-year
reduction'' for completing a substance-abuse-treatment program in
accordance with 18 U.S.C. 3621(e)(2) (DC Code section 24-403.01(d-
1)(1)); and that certain DC Code offenders who committed their crimes
before age 25 have an opportunity to be resentenced to a reduced term
(DC Code section 24-403.03). There are no similar provisions to allow
DC Code offenders to have sentences reduced by early placement on
supervised release under the terms of the FSA.
Many of these considerations implicate the sovereignty of the
District of Columbia and its authority over DC Code offenders and could
be addressed through local legislation. The Bureau further understands
that the DC Council is actively considering whether and

[[Page 2716]]

under what circumstances DC Code offenders should be eligible for FSA
Time Credits as a matter of DC law. The Council has the authority and
latitude to incorporate the FSA Time Credit program by reference into
the DC Code and specify which DC Code offenders are eligible to apply
FSA Time Credits. The DC Council may, for example, develop a list of
excluded DC Code offenses that parallels the list of violent federal
offenses in 18 U.S.C. 3632(d)(4)(D), or otherwise clarify whether and
in what circumstances inmates may apply Time Credits toward pre-release
custody and/or supervised release. Should the Council enact legislation
that speaks to the issues presented by the FSA's ambiguity, such
legislation could significantly inform, or dictate, the relevance of
the FSA's time-credit program to DC Code offenders in the Bureau's
custody.
In light of these statutory interpretation and policy
considerations, and the current deliberations of the DC Council, the
Bureau will defer definitively resolving the FSA's ambiguities with
respect to DC Code offenders in its custody. The final rule therefore
is amended to reflect the possibility that the DC Council will enact
legislation regarding the eligibility of such offenders to apply FSA
Time Credits. Thus, any inmate in Bureau custody who is sentenced to a
term of imprisonment under the Criminal Code of the District of
Columbia is, at present, not eligible to apply FSA Time Credits unless
the laws of the District of Columbia are amended to authorize the
application of such credits. The Bureau may revisit this question
through future rulemaking, depending on the outcome of the DC Council's
consideration of these issues, and any other relevant developments.

Regulatory Certifications

Executive Orders 12866 and 13563: Because this proposed rule may
raise novel legal or policy issues arising out of implementation of the
First Step Act, the Office of Management and Budget (OMB) has
determined that it constitutes a ``significant regulatory action''
under section 3(f) of Executive Order 12866 and has reviewed it.
The economic impact of this rule is limited to a specific subset of
inmates who are eligible to earn and apply FSA Time Credits toward
additional prerelease custody or early transfer to supervised release.
Under the FSA, FSA Time Credits may be earned by an eligible inmate who
is assessed to have a minimum or low risk for recidivating and who has
had no increased risk of recidivism over the most recent two
consecutive assessments conducted by the Bureau. Consistent with the
FSA, inmates in Bureau custody are assessed under its risk and needs
assessment system, which includes both static and dynamic elements.
For example, on August 27, 2020, 131,386 inmates had been assessed
under the risk and needs assessment tool and received a risk and needs
assessment score. The risk and needs assessment scores for the entire
group of 131,386 inmates were: 50,060 classified as high; 25,043
classified as medium; 38,084 classified as low; and 18,199 classified
as minimum. Of these inmates, approximately 65,000 would be ineligible
to earn FSA Time Credits under the FSA due to the inmate's crime of
conviction. This data represents a snapshot of those inmates in Bureau
custody as of August 27, 2020.
The Bureau conducted risk and needs assessments for Federal inmates
and assigned EBRR Programs by the January 15, 2020, FSA deadline. As of
that date, recidivism risk assessment levels of High, Medium, Low, or
Minimum were assigned to all sentenced inmates at Bureau designated
facilities. The Bureau anticipates that this data will change
continually, as inmates in custody earn reductions in risk
classification, based on program participation and other dynamic
factors, and inmates enter and release from Bureau custody.
The Bureau anticipates that as a result of this rule and the FSA,
additional inmates will engage in programming to earn FSA Time Credits.
As discussed above, FSA Time Credits may be earned for successful
completion of an EBRR Program or PA that is assigned to an inmate based
on the inmate's needs assessment. The current list of these programs
can be found at <a href="https://www.bop.gov/inmates/fsa/docs/2021_fsa_program_guide.pdf">https://www.bop.gov/inmates/fsa/docs/2021_fsa_program_guide.pdf</a>. These programs are available to all inmates
regardless of an inmate's eligibility to earn FSA Time Credits.
The rule may also result in movement of eligible inmates who earn
FSA Time Credits from Bureau facilities to prerelease custody in the
community (including RRCs and home confinement) earlier in the course
of their confinement and for a longer period of time than would have
previously occurred. In some cases, this transfer of time from secured
confinement to prerelease custody may result in increased costs,
depending on the relative costs of the inmate's current facility and
the costs associated with housing or supervision in prerelease custody.
The rule may also result in the early transfer of inmates from
custody to supervised release, functionally shortening their term of
imprisonment. In such cases, the Bureau would avoid costs that would
otherwise have been incurred to confine the affected inmates for that
amount of time.
At present, therefore, specific monetary costs or savings for these
future actions cannot be calculated. But, consistent with the purpose
of the statute, the proposed rule will enhance public safety and reduce
the need for future incarceration by providing significant incentives
to encourage inmates to participate in evidence-based programs intended
to reduce their risk of recidivism and help facilitate their successful
reentry back into society after they have served their time.\6\
---------------------------------------------------------------------------

\6\ The costs or cost savings resulting from this rule will not
be fully realized for years to come, as increasing numbers of
inmates have opportunities to earn FSA Time Credits over their terms
of incarceration, are transferred to prerelease custody or
supervised release, and reintegrate into the community.
---------------------------------------------------------------------------

For these reasons, it is not possible to forecast the actual
economic effect of this rule. However, given the mix of cost increases
and savings which may result, the overall long-term economic impact is
expected to be marginal in either direction.
The purpose of this rule is to codify the Bureau's procedures
regarding the earning and application of time credits as authorized by
the FSA. Time credits may be applied towards prerelease custody or
early transfer to supervised release, and some inmates will be eligible
for such custody or release as soon as this rule goes into effect.
Delaying implementation for 30 days could therefore deprive at least
some inmates of time in the less restrictive environments that Congress
has determined are appropriate for eligible inmates. Given the liberty
issues implicated by the prompt implementation of this program and this
rule, the Bureau is prepared to begin implementation immediately, and
the Bureau therefore finds good cause for exempting this rule from the
provision of the Administrative Procedure Act (5 U.S.C. 553(d)) which
ordinarily requires a delay in effective date. The Bureau notes that
neither it nor the affected inmates require a delay to adjust their
practices before this rule takes effect. A delay in the effective date
of this final rule would be unnecessary and contrary to the public
interest.
Executive Order 13132: This rule will not have substantial direct
effect on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various

[[Page 2717]]

levels of government. Therefore, under Executive Order 13132, we
determine that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act: The Director of the Bureau of Prisons,
under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this
rule and certifies that it will not have a significant economic impact
upon a substantial number of small entities for the following reasons:
This rule pertains to the correctional management of offenders
committed to the custody of the Attorney General or the Director of the
Bureau of Prisons, and its economic impact is limited to the Bureau's
appropriated funds.
Unfunded Mandates Reform Act of 1995: This rule will not result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more in any one
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act: This rule is not a major rule as defined
by the Congressional Review Act, 5 U.S.C. 804.
For the foregoing reasons, we issue the regulations regarding the
First Step Act Time Credits, proposed on November 25, 2020, with
modifications, as set forth below.

List of Subjects in 28 CFR Parts 523 and 541

Prisoners.

Michael D. Carvajal,
Director, Federal Bureau of Prisons.

Under rulemaking authority vested in the Attorney General in 5
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of
Prisons in 28 CFR 0.96, we amend 28 CFR parts 523 and 541 as follows:

Subchapter B--Inmate Admission, Classification, and Transfer

PART 523--COMPUTATION OF SENTENCE

0
1. The authority citation for 28 CFR part 523 is revised to read as
follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3568 (repealed November 1,
1987, as to offenses committed on or after that date), 3621, 3622,
3624, 3632, 3635, 4001, 4042, 4081, 4082 (repealed in part as to
conduct occurring on or after November 1, 1987), 4161-4166 (repealed
October 12, 1984, as to offenses committed on or after November 1,
1987), 5006-5024 (repealed October 12, 1984, as to conduct occurring
after that date), 5039; 28 U.S.C. 509, 510.

0
2. Add subpart E to read as follows:
Subpart E--First Step Act Time Credits
Sec.
523.40 Purpose.
523.41 Definitions.
523.42 Earning First Step Act Time Credits.
523.43 Loss of FSA Time Credits.
523.44 Application of FSA Time Credits.

Sec. 523.40 Purpose.

(a) The purpose of this subpart is to describe procedures for the
earning and application of Time Credits as authorized by 18 U.S.C.
3632(d)(4) and Section 101 of the First Step Act of 2018 (Pub. L. 115-
391, December 21, 2018, 132 Stat. 5194) (FSA), hereinafter referred to
as ``FSA Time Credits'' or ``Time Credits.''
(b) Generally, as defined and described in this subpart, an
eligible inmate who successfully participates in Evidence-Based
Recidivism Reduction (EBRR) Programs or Productive Activities (PAs)
that are recommended based on the inmate's risk and needs assessment
may earn FSA Time Credits to be applied toward prerelease custody or
early transfer to supervised release under 18 U.S.C. 3624(g).

Sec. 523.41 Definitions.

(a) Evidence-Based Recidivism Reduction (EBRR) Program. An EBRR
Program is a group or individual activity that has been shown by
empirical evidence to reduce recidivism or is based on research
indicating that it is likely to be effective in reducing recidivism;
and is designed to help prisoners succeed in their communities upon
release from prison. EBRR Programs may include, but are not limited to,
those involving the following types of activities:
(1) Social learning and communication, interpersonal, anti-
bullying, rejection response, and other life skills;
(2) Family relationship building, structured parent-child
interaction, and parenting skills;
(3) Classes on morals or ethics;
(4) Academic classes;
(5) Cognitive behavioral treatment;
(6) Mentoring;
(7) Substance abuse treatment;
(8) Vocational training;
(9) Faith-based classes or services;
(10) Civic engagement and reintegrative community services;
(11) Inmate work and employment opportunities;
(12) Victim impact classes or other restorative justice programs;
and
(13) Trauma counseling and trauma-informed support programs.
(b) Productive Activity (PA). A PA is a group or individual
activity that allows an inmate to remain productive and thereby
maintain or work toward achieving a minimum or low risk of
recidivating.
(c) Successful participation. (1) An eligible inmate must be
``successfully participating'' in EBRR Programs or PAs to earn FSA Time
Credits for those EBRR Programs or PAs.
(2) ``Successful participation'' requires a determination by Bureau
staff that an eligible inmate has participated in the EBRR programs or
PAs that the Bureau has recommended based on the inmate's
individualized risk and needs assessment, and has complied with the
requirements of each particular EBRR Program or PA.
(3) Temporary operational or programmatic interruptions authorized
by the Bureau that would prevent an inmate from participation in EBRR
programs or PAs will not ordinarily affect an eligible inmate's
``successful participation'' for the purposes of FSA Time Credit
eligibility.
(4) An eligible inmate, as described in paragraph (d) of this
section, will generally not be considered to be ``successfully
participating'' in EBRR Programs or PAs in situations including, but
not limited to:
(i) Placement in a Special Housing Unit;
(ii) Designation status outside the institution (e.g., for extended
medical placement in a hospital or outside institution, an escorted
trip, a furlough, etc.);
(iii) Temporary transfer to the custody of another Federal or non-
Federal government agency (e.g., on state or Federal writ, transfer to
state custody for service of sentence, etc.);
(iv) Placement in mental health/psychiatric holds; or
(v) ``Opting out'' (choosing not to participate in the EBRR
programs or PAs that the Bureau has recommended based on the inmate's
individualized risk and needs assessment).
(5)(i) If an eligible inmate ``opts out,'' or chooses not to
participate in any of the EBRR programs or PAs that the Bureau has
recommended based on the inmate's individualized risk and needs
assessment, the inmate's choice must be documented by staff.
(ii) Opting out will not, by itself, be considered a disciplinary
violation. However, violation of specific requirements or rules of a
particular recommended EBRR Program or PA, including refusal to
participate or withdrawal, may be considered a disciplinary violation
(see this part).
(iii) Opting out will result in exclusion from further benefits or
privileges allowable under the FSA,

[[Page 2718]]

until the date the inmate ``opts in'' (chooses to participate in the
EBRR programs or PAs that the Bureau has recommended based on the
inmate's individualized risk and needs assessment, as documented by
staff).
(d) Eligible inmate--(1) Eligible to earn FSA Time Credits. An
inmate who is eligible to earn FSA Time Credits is an eligible inmate
for the purposes of this subpart. Any inmate sentenced to a term of
imprisonment pursuant to a conviction for a Federal criminal offense,
or any person in the custody of the Bureau, is eligible to earn FSA
Time Credits, subject to the exception described in paragraph (d)(2) of
this section.
(2) Exception. If the inmate is serving a term of imprisonment for
an offense specified in 18 U.S.C. 3632(d)(4)(D), the inmate is not
eligible to earn FSA Time Credits.

Sec. 523.42 Earning First Step Act Time Credits.

(a) When an eligible inmate begins earning FSA Time Credits. An
eligible inmate begins earning FSA Time Credits after the inmate's term
of imprisonment commences (the date the inmate arrives or voluntarily
surrenders at the designated Bureau facility where the sentence will be
served).
(b) Dates of participation in EBRRs or PAs. (1) An inmate cannot
earn FSA Time Credits for programming or activities in which he or she
participated before December 21, 2018, the date of enactment of the
First Step Act of 2018.
(2) An eligible inmate, as defined in this subpart, may earn FSA
Time Credits for programming and activities in which he or she
participated from December 21, 2018, until January 14, 2020.
(3) An eligible inmate, as defined in this subpart, may earn FSA
Time Credit if he or she is successfully participating in EBRR programs
or PAs that the Bureau has recommended based on the inmate's
individualized risk and needs assessment on or after January 15, 2020.
(c) Amount of FSA Time Credits that may be earned. (1) For every
thirty-day period that an eligible inmate has successfully participated
in EBRR Programs or PAs recommended based on the inmate's risk and
needs assessment, that inmate will earn ten days of FSA Time Credits.
(2) For every thirty-day period that an eligible inmate has
successfully participated in EBRR Programs or PAs recommended based on
the inmate's risk and needs assessment, that inmate will earn an
additional five days of FSA Time Credits if the inmate:
(i) Is determined by the Bureau to be at a minimum or low risk for
recidivating; and
(ii) Has maintained a consistent minimum or low risk of recidivism
over the most recent two consecutive risk and needs assessments
conducted by the Bureau.

Sec. 523.43 Loss of FSA Time Credits.

(a) Procedure for loss of FSA Time Credits. An inmate may lose
earned FSA Time Credits for violation of the requirements or rules of
an EBRR Program or PA. The procedures for loss of FSA Time Credits are
described in 28 CFR part 541.
(b) How to appeal loss of FSA Time Credits. Inmates may seek review
of the loss of earned FSA Time Credits through the Bureau's
Administrative Remedy Program (28 CFR part 542).
(c) Restoration of FSA Time Credits. An inmate who has lost FSA
Time Credits under this subpart may have part or all of the FSA Time
Credits restored to him or her, on a case-by-case basis, after clear
conduct (behavior clear of inmate disciplinary infractions under 28 CFR
part 541) for two consecutive risk and needs assessments conducted by
the Bureau.

Sec. 523.44 Application of FSA Time Credits.

(a) How Time Credits may be applied. For any inmate eligible to
earn FSA Time Credits under this subpart who is:
(1) Sentenced to a term of imprisonment under the U.S. Code, the
Bureau may apply FSA Time Credits toward prerelease custody or
supervised release as described in paragraphs (c) and (d) of this
section.
(2) Subject to a final order of removal under immigration laws as
defined in 8 U.S.C. 1101(a)(17) (see 18 U.S.C. 3632(d)(4)(E)), the
Bureau may not apply FSA Time Credits toward prerelease custody or
early transfer to supervised release.
(3) Serving a term of imprisonment pursuant to a conviction for an
offense under laws other than the U.S. Code (see Section 105 of the
FSA, Pub. L. 115-391, 132 Stat. 5214 (not codified; included as note to
18 U.S.C. 3621)), the Bureau may not apply FSA Time Credits toward
prerelease custody or early transfer to supervised release. This
paragraph (a)(3) will not bar the application of FSA Time Credits, as
authorized by the DC Code, for those serving a term of imprisonment for
an offense under the DC Code.
(b) Consideration for application of FSA Time Credits. Where
otherwise permitted by this subpart, the Bureau may apply FSA Time
Credits toward prerelease custody or early transfer to supervised
release under 18 U.S.C. 3624(g) only if an eligible inmate has:
(1) Earned FSA Time Credits in an amount that is equal to the
remainder of the inmate's imposed term of imprisonment;
(2) Shown through the periodic risk reassessments a demonstrated
recidivism risk reduction or maintained a minimum or low recidivism
risk, during the term of imprisonment; and
(3) Had the remainder of his or her imposed term of imprisonment
computed under applicable law.
(c) Prerelease custody. The Bureau may apply earned FSA Time
Credits toward prerelease custody only when an eligible inmate has, in
addition to satisfying the criteria in paragraph (b) of this section:
(1) Maintained a minimum or low recidivism risk through his or her
last two risk and needs assessments; or
(2) Had a petition to be transferred to prerelease custody or
supervised release approved by the Warden, after the Warden's
determination that:
(i) The prisoner would not be a danger to society if transferred to
prerelease custody or supervised release;
(ii) The prisoner has made a good faith effort to lower their
recidivism risk through participation in recidivism reduction programs
or productive activities; and
(iii) The prisoner is unlikely to recidivate.
(d) Transfer to supervised release. The Bureau may apply FSA Time
Credits toward early transfer to supervised release under 18 U.S.C.
3624(g) only when an eligible inmate has, in addition to satisfying the
criteria in paragraphs (b) and (c) of this section:
(1) An eligible inmate has maintained a minimum or low recidivism
risk through his or her last risk and needs assessment;
(2) An eligible inmate has a term of supervised release after
imprisonment included as part of his or her sentence as imposed by the
sentencing court; and
(3) The application of FSA Time Credits would result in transfer to
supervised release no earlier than 12 months before the date that
transfer to supervised release would otherwise have occurred.

Subchapter C--Institutional Management

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

0
3. The authority citation for part 541 continues to read as follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001,
4042, 4081, 4082 (Repealed in part as to offenses committed on or
after November 1, 1987), 4161-4166 (Repealed as

[[Page 2719]]

to offenses committed on or after November 1, 1987), 5006-5024
(Repealed October 12, 1984 as to offenses committed after that
date), 5039; 28 U.S.C. 509, 510.

0
4. Amend Sec. 541.3 in paragraph (b), Table 1, by:
0
a. Under the heading ``Available Sanctions for Greatest Severity Level
Prohibited Acts'', adding the entry B.2 in alphanumeric order;
0
b. Under the heading ``Available Sanctions for High Severity Level
Prohibited Acts'', adding the entry B.2 in alphanumeric order;
0
c. Under the heading ``Available Sanctions for Moderate Severity Level
Prohibited Acts'', adding the entry B.2 in alphanumeric order; and
0
d. Under the heading ``Available Sanctions for Low Severity Level
Prohibited Acts'', adding the entry B.2 in alphanumeric order.
The additions read as follows:

Sec. 541.3 Prohibited acts and available sanctions.

* * * * *
(b) * * *

Table 1--Prohibited Acts and Available Sanctions
------------------------------------------------------------------------

------------------------------------------------------------------------

* * * * * * *
------------------------------------------------------------------------
Available Sanctions for Greatest Severity Level Prohibited Acts
------------------------------------------------------------------------

* * * * * * *
B.2............................... Forfeit up to 41 days of earned
First Step Act (FSA) Time Credits
(see 28 CFR part 523, subpart E)
for each prohibited act committed.

* * * * * * *
------------------------------------------------------------------------
Available Sanctions for High Severity Level Prohibited Acts
------------------------------------------------------------------------

* * * * * * *
B.2............................... Forfeit up to 27 days of earned FSA
Time Credits for each prohibited
act committed.

* * * * * * *
------------------------------------------------------------------------
Available Sanctions for Moderate Severity Level Prohibited Acts
------------------------------------------------------------------------

* * * * * * *
B.2............................... Forfeit up to 14 days of earned FSA
Time Credits for each prohibited
act committed.

* * * * * * *
------------------------------------------------------------------------
Available Sanctions for Low Severity Level Prohibited Acts
------------------------------------------------------------------------

* * * * * * *
B.2............................... Forfeit up to 7 days of earned FSA
Time Credits (only where the inmate
is found to have committed a second
violation of the same prohibited
act within 6 months; forfeit up to
14 days of FSA Time Credits (only
where the inmate is found to have
committed a third violation of the
same prohibited act within 6
months).

* * * * * * *
------------------------------------------------------------------------

* * * * *

0
5. Amend Sec. 541.7 by revising paragraph (f) to read as follows:

Sec. 541.7 Unit Discipline Committee (UDC) review of the incident
report.

* * * * *
(f) Sanctions. If you committed a prohibited act or prohibited
acts, the UDC can impose any of the available sanctions in Tables 1 and
2 of Sec. 541.3, except loss of good conduct time credit, FSA Time
Credits, disciplinary segregation, or monetary fines.

[FR Doc. 2022-00918 Filed 1-14-22; 4:15 pm]
BILLING CODE P

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