First Step Act Time Credits-Revisions

Issuing agencies

Abstract

The Bureau of Prisons (BOP) amends its First Step Act (FSA) Time Credits regulation to accord with the best reading of the FSA and to conform with recent case law trends. The first change clarifies when an inmate can begin to earn time credits, and the second change clarifies time credits eligibility for inmates serving a term of imprisonment imposed in a foreign country.

Full Text

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<title>Federal Register, Volume 91 Issue 167 (Monday, August 31, 2026)</title>
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[Federal Register Volume 91, Number 167 (Monday, August 31, 2026)]
[Rules and Regulations]
[Pages 55740-55744]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-17752]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 523

[BOP-1183-I]
RIN 1120-AB83


First Step Act Time Credits--Revisions

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Bureau of Prisons (BOP) amends its First Step Act (FSA) 
Time Credits regulation to accord with the best reading of the FSA and 
to conform with recent case law trends. The first change clarifies when 
an inmate can begin to earn time credits, and the second change 
clarifies time credits eligibility for inmates serving a term of 
imprisonment imposed in a foreign country.

DATES: 
    Effective date: This rule is effective September 30, 2026.
    Comments: Written comments must be postmarked and electronic 
comments must be submitted on or before September 30, 2026.

ADDRESSES: You may submit comments using one of the following methods:
    [ssquf] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 
Follow the instructions for submitting comments. Commenters should be 
aware that the electronic Federal Docket Management System will not 
accept comments after Midnight Eastern Time on the last day of the 
comment period.
    [ssquf] Mail: Office of General Counsel, Attn: LCI/Rules 
Administrator, Federal Bureau of Prisons, 320 First Street NW, 
Washington, DC 20534. Reference ``FSA Time Credits rule'' on the first 
page of the written comment.
    Comments will be made available to the public online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Do not include any personally identifiable or 
confidential information that you do not want publicly disclosed. 
Anonymous comments are acceptable.

FOR FURTHER INFORMATION CONTACT: Whittington C. Wiman, Rules 
Administrator, Federal Bureau of Prisons, at the address above or at 
(202) 353-4885.

SUPPLEMENTARY INFORMATION:

I. Discussion of Rulemaking

    The goal of this rulemaking is to amend two sections of the First 
Step Act (FSA) Time Credits regulation to accord with the best reading 
of the FSA and to conform with recent case law trends. On January 19, 
2022, the Bureau of Prisons (BOP) codified its procedures regarding the 
earning and application of time credits as authorized by the FSA 
(hereinafter, ``FSA Time Credits'' or ``Time Credits''), which provides 
that eligible inmates earn Time Credits toward prerelease custody or 
early transfer to supervised release for successfully completing 
certain approved programs or activities assigned to each inmate based 
on the inmate's risk and needs assessments.
    On February 19, 2025, President Donald J. Trump issued Executive 
Order (E.O.) 14219, ``Ensuring Lawful Governance and Implementing the 
President's `Department of Government Efficiency' Deregulatory 
Initiative,'' which directs all executive agencies to identify certain 
``classes of regulations'' enumerated in Section 2(a) of the E.O. and 
subject to certain exemptions in Section 7. 90 FR 10583 (Feb. 25, 
2025). Pursuant to that executive order, BOP reviewed its regulations 
and identified two sections of its FSA Time Credits regulation as ones 
to which revisions should be made to ensure the regulatory scheme is 
based on the best reading of the underlying statutory authority.
    The first change removes the parenthetical clause from 28 CFR

[[Page 55741]]

523.42(a), which provides that a ``term of imprisonment commences'' 
(and thus an inmate may begin to earn Time Credits) on ``the date the 
inmate arrives or voluntarily surrenders at the designated Bureau 
facility where the sentence will be served.'' BOP believes this portion 
of the paragraph should be removed to accord with the best reading of 
the FSA and to conform with recent court decisions that have concluded 
this language conflicts with the FSA. See, e.g., Miles v. Bowers, 173 
F.4th 372, 379 (1st Cir. Apr. 27, 2026) (finding the regulation's view 
of when a sentence commences ``plainly conflicts with the text of the 
FSA''); Sharma v. Peters, 756 F. Supp. 3d 1271, 1281-82 (M.D. Ala. 
2024) (concluding that 28 CFR 523.42 ``adds a layer of eligibility not 
found in the statute'' and thus ``conflicts with its express 
language''); Davidovic v. Warden, FCC Coleman-Low, No. 24-cv-86, at 5 
(M.D. Fla. May 2, 2025) (``Thus, the BOP's regulation that adds a layer 
of eligibility not found in the statute conflicts with its express 
language.''); Heath v. Knight, No. 22-CV-7270, 2024 WL 5198863, at *5 & 
n.9 (D.N.J. Dec. 23, 2024) (concluding that ``BOP's interpretation in 
28 CFR 523.42(a) . . . conflicts with the plain meaning of the 
statute,'' and citing district court decisions holding the same from 
the Central District of California, District of Minnesota, District of 
Massachusetts, Eastern District of California, Western District of 
Washington, District of Hawaii, and the District of New Hampshire); 
Anderson v. FPC Yankton, No. 4:23-CV-04136-ECS, 2024 WL 4993680, at *2 
(D.S.D. Nov. 26, 2024) (collecting cases and ``tending to agree'' but 
not ruling until jurisdiction was resolved).
    With the parenthetical clause removed, the paragraph provides that 
``[a]n eligible inmate begins earning FSA Time Credits after the 
inmate's term of imprisonment commences.'' This change aligns the 
regulatory text with the long-established rule that a sentence to a 
term of imprisonment commences on the date the defendant is received in 
custody awaiting transportation to, or voluntarily arrives at, the 
official detention facility at which the sentence is to be served. 18 
U.S.C. 3585(a). The underlying principle of Sec.  3585(a) is that a 
federal sentence commences when the defendant is received by the 
Attorney General of the United States \1\ for service of his federal 
sentence, whether through remand immediately after federal sentencing, 
or upon the date on which the defendant voluntarily surrenders to the 
official detention facility where the sentence is to be served. Rashid 
v. Quintana, 372 F. App'x 260, 262 (3d Cir. 2010) (``A federal sentence 
commences when the defendant is received by the Attorney General for 
service of his federal sentence.''). A sentence cannot begin prior to 
the date on which it is imposed. United States v. Gonzalez, 192 F.3d 
350 (2d Cir. 1999); see United States v. Flores, 616 F.2d 840, 841 (5th 
Cir. 1980) (``[A] federal sentence cannot commence prior to the date it 
is pronounced, even if made concurrent with a sentence already being 
served.''); United States v. Tancil, 817 F.App'x 234, 237 (7th Cir. 
2020) (``[A] district judge may not backdate a sentence.''). Therefore, 
by removing the parenthetical, we leave intact the understanding that a 
term of imprisonment begins either (1) on the date the defendant is 
received in custody pending transportation to the designated facility 
where the sentence will be served, or (2) on the date the defendant 
voluntarily surrenders at the institution where the sentence will be 
served.
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    \1\ Title 18 U.S.C. 3621 explicitly vests the Attorney General's 
designation authority in the BOP.
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    This change furthers the FSA's goal of providing inmates access to 
programs and activities proven to reduce their likelihood of 
recidivating. Specifically, removing the parenthetical allows inmates 
awaiting transportation to their designated facilities to begin FSA-
approved programming, the successful completion of which may earn 
eligible inmates Time Credits. However, this change does not mean that 
every eligible inmate will automatically begin earning Time Credits 
immediately after their sentence is imposed. In accordance with the FSA 
and its implementing regulations, to earn Time Credits, the inmate must 
still complete evidence-based recidivism reduction (EBRR) programming 
or productive activities assigned to them based on their assessed 
needs. 18 U.S.C. 3632(d)(4)(A); 28 CFR 523.42(b)(3).
    The second change addresses the eligibility of prisoners 
transferred to BOP custody from foreign countries to earn Time 
Credits.\2\ This change adds a concluding sentence to 28 CFR 
523.44(a)(3), which addresses ``[s]erving a term of imprisonment 
pursuant to a conviction for an offense under laws other than the U.S. 
Code . . . .'' The new sentence clarifies that Time Credits can be 
applied for inmates serving a term of imprisonment imposed in a foreign 
country so long as the U.S. Parole Commission has determined an 
equivalent U.S. Code sentence exists under 18 U.S.C. 4106A. At least 
one federal court agrees that inmates serving a foreign sentence that, 
when evaluated for its equivalent U.S. Code section and qualifies as 
eligible, is eligible for Time Credits. Martinez v. Rosalez, No. 23-
50406, 2024 WL 140438 (5th Cir. Jan. 12, 2024). BOP's current practice 
is consistent with the regulatory change, so the amendment would codify 
that practice and ensure the regulation accords with the best reading 
of the FSA.
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    \2\ Pursuant to Public Law 95-144 (18 U.S.C. 4001 et seq.), BOP 
is authorized to receive custody of offenders who are convicted and 
sentenced in foreign countries, so long as there is a treaty in 
place between the United States and that country.
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    This change also furthers the FSA's goal of preparing inmates to 
successfully re-enter their communities within the United States by 
allowing treaty transfer inmates--who must be a citizen or national of 
the United States under 18 U.S.C. 4100(b)--the same resources as other 
inmates under the FSA so they can reintegrate back into society. 
Through treaties, U.S. citizens or nationals who commit crimes and are 
sentenced in foreign countries may serve their terms of imprisonment in 
BOP custody so they can avail themselves of programming and reentry-
related activities that strengthen ties to their local communities and 
reduce the risk of recidivism. Therefore, by no longer excluding treaty 
transfer inmates from FSA eligibility based solely on their foreign 
convictions, we are improving public safety by incentivizing risk-
reduction programming.

II. Regulatory Certifications

Executive Orders 12866 and 13563--Regulatory Review

    The Department has determined that this rulemaking is a 
``significant regulatory action'' under subsection 3(f) of Executive 
Order 12866, ``Regulatory Planning and Review''. Accordingly, this 
interim final rule has been submitted to the Office of Management and 
Budget (OMB) for review. This interim final rule has been drafted and 
reviewed in accordance with Executive Order 12866, ``Regulatory 
Planning and Review,'' subsection 1(b), Principles of Regulation, and 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
subsection 1(b), General Principles of Regulation.
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and

[[Page 55742]]

equity). Executive Order 13563 emphasizes the importance of using the 
best available methods to quantify costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility.
    As shown in the table below, BOP projects that expansion of Time 
Credits will result in net savings of millions of taxpayer dollars 
because less time in a BOP institution or in a Residential Community 
Center (RRC) or on Home Confinement (HC) equates to cost savings. 
Current estimates show that thousands of inmates will benefit from 
eligibility expansion and be able to leave a BOP institution and 
transfer to an RRC or HC sooner than they would without these 
regulatory changes.

  Average Length of Time to Designation and Average Potential Time Credits for FSA Eligible Inmates With Annual
                                                Estimated Savings
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                                                                                     Potential       Potential
                                      Inmates        Avg days       Daily cost      savings per    saving total
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Length of Time to Designation...  ..............           66.06  ..............  ..............  ..............
FTCs Toward RRC/HC..............           7,554           23.81           10.61             253       1,908,322
FTCs Toward Supervised Release            11,258           23.81          119.73        2,850.77      32,093,983
 (RRC)..........................
FTCs Toward Supervised Release             6,486           23.81          130.34        3,103.40      20,128,623
 (BOP Facility).................
    Total Potential Savings for   ..............  ..............  ..............  ..............      54,130,928
     Additional Time Credits....
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Avg time from sentencing to designation (66.06 days) results in an average of 23.81 days of Time Credits.
Total daily cost for all typical facilities = $130.34.
Total daily cost for RRC/HC = $119.73. Cost savings of transfer to RRC/HC = $10.61/day.
Daily cost obtained from the current published Annual Determination of Average Cost of Incarceration Fee (COIF).
Number of Inmates = Annual average FSA-eligible transfers to RRC & supervised release 2023-2025.

    The time an inmate spends in transit before arriving at their 
designated BOP facility, after the federal sentence is imposed, can 
vary widely based on the difference between the starting and ending 
locations as well as the capacity and availability of air and bus 
routes. An analysis of the transit times for newly committed inmates 
with sentences starting from 2023 through 2025 found the average length 
of time from sentencing to arrival at the designated facility to be 
66.06 days. At the time of sentencing, inmates are in the custody of 
the United States Marshals Service (USMS) and may be housed in local, 
county, and regional jails or federal detention centers. The above 
analysis of transit time included all facilities utilized by USMS.
    Inmates accrue Time Credits at a rate of 10 or 15 days for every 30 
days of successful participation in EBRR programming or productive 
activities based on their individual calculated recidivism risk level. 
Inmates determined to be at a minimum or low risk for recidivating and 
maintain or decrease their risk level over two consecutive assessments 
earn 15 Time Credits for every 30 days of participation. Inmates with a 
medium or high risk for recidivating or who have not maintained a low 
risk for two consecutive assessments earn 10 days of Time Credits for 
every 30 days of participation. Based on the current risk levels in the 
BOP population, the average time of 66.06 days spent in transit would 
result in 23.81 days of Time Credits.
    For inmates with a low or minimum risk of recidivism, the first 365 
days of accrued Time Credits are applied to an inmate's calculated 
statutory release date for early release to supervision if the 
sentencing court included a requirement that the inmate be placed on a 
term of supervised release after imprisonment as part of the inmate's 
sentence. For inmates with a low or minimum risk of recidivism without 
a term of imprisonment, and/or for Time Credits accrued in excess of 
365 days, inmates can be transferred to prerelease custody in a RRC or 
HC when the Time Credits are equal to the remainder of the imprisonment 
term.
    As shown in the above table, an analysis of inmates earning Time 
Credits who were released from BOP custody from 2023 through 2025 
identified three categories of application of Time Credits for transfer 
and release: (1) Time Credits applied toward transfer to prerelease 
custody (RRC or HC) for inmates without a term of supervision (which 
averaged 7,554 inmates annually); (2) Time Credits applied toward 
supervised prerelease custody and early supervised release (which 
averaged 11,258 inmates annually); and (3) Time Credits applied toward 
early supervised release whereby inmates release from a typical BOP 
facility (which averaged 6,486 inmates annually). The expansion of Time 
Credits would result in savings by allowing inmates to transfer to 
prerelease custody (RRC or HC) an average of 23.81 days earlier, or 
result in inmates releasing to a term of supervised release earlier.
    According to BOP's 2024 Cost of Incarceration Fee (COIF), the 
average per capita cost for an inmate in a secure facility is $130.34 
and the per capita cost for prerelease custody is $119.73. The savings 
for transferring inmates from secure facilities to RRCs or HCs is 
$10.61 per day. Applying these per capita amounts to the three 
categories of inmates receiving an additional 23.81 days of Time 
Credits results in the following potential savings: (1) $1,908,322 for 
additional Time Credits applied toward transfer to prerelease custody 
at $10.61 reduced cost for 23.81 days for 7,554 inmates annually; (2) 
$32,093,983 for additional Time Credits applied toward early supervised 
release from an RRC at $119.73 reduced cost for 23.81 days for 11,258 
inmates annually; and (3) $20,128,623 for additional Time Credits 
applied toward early supervised release from a typical BOP facility at 
$130.34 reduced cost for 23.81 days for 6,486 inmates annually. 
Accordingly, far from increasing costs, the expansion of Time Credits 
is projected to reduce overall costs in the estimated amount of 
$54,130,928.

Executive Order 14192--Regulatory Costs

    Executive Order 14192 (Unleashing Prosperity Through Deregulation) 
requires an agency, unless prohibited by law, to identify at least ten 
existing regulations to be repealed or revised when the agency publicly 
proposes for notice and comment or otherwise promulgates a new 
regulation that qualifies as an Executive Order 14192 regulatory action 
(defined in OMB Memorandum M-25-20 as a final significant regulatory 
action as defined in section 3(f) of Executive Order 12866 that imposes 
total costs greater than zero). In furtherance of this requirement, 
section 3(c) of Executive Order 14192 requires that any new incremental 
costs

[[Page 55743]]

associated with such new regulations must, to the extent permitted by 
law, also be offset by eliminating existing costs associated with at 
least ten prior regulations. Although this rule would be a significant 
regulatory action as defined by Executive Order 12866, it would not 
count as an Executive Order 14192 regulatory action because it has 
total costs less than zero. This rule expands the accrual period of 
Time Credits and reduces the amount of time inmates spend in BOP 
facilities, producing cost savings. BOP therefore expects this rule to 
qualify as an Executive Order 14192 deregulatory action (defined in OMB 
Memorandum M-25-20 as a final action that imposes total costs less than 
zero).

Executive Order 14294--Fighting Overcriminalization of Federal 
Regulations

    Executive Order 14294 ``Fighting Overcriminalization in Federal 
Regulations'' directs agencies promulgating regulations with criminal 
regulatory offenses potentially subject to criminal enforcement to 
explicitly describe the conduct subject to criminal enforcement, the 
authorizing statutes, and the mens rea standard applicable to each 
element of those offenses. For the purposes of Executive Order 14294, 
the phrase ``criminal regulatory offense'' means a regulation that 
purports to impose a penalty of imprisonment without a connection to a 
statute that itself authorizes such a penalty. The phrase does not 
include regulations implementing a statutory scheme in which a statute 
contains a criminal penalty (i.e., imprisonment) and authorizes an 
agency to define by regulation what specific conduct is prohibited. 
This rule does not impose a penalty of imprisonment that is not 
authorized by statute and is thus exempt from Executive Order 14924 
requirements.

Executive Order 13132--Federalism

    This interim final rule will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this interim final rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Executive Order 12988--Civil Justice Reform (Plain Language)

    This interim final rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 to specify 
provisions in clear language. Pursuant to section 3(b)(1)(I) of the 
Executive Order, nothing in this interim final rule or any previous 
rule (or in any administrative policy, directive, ruling, notice, 
guideline, guidance, or writing) directly relating to the Program that 
is the subject of this interim final rule is intended to create any 
legal or procedural rights enforceable against the United States.

Administrative Procedure Act, 5 U.S.C. 553

    The Administrative Procedure Act (5 U.S.C. 553(b) (B)) allows 
exceptions to notice-and-comment rulemaking ``when the agency for good 
cause finds . . . that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' 
Further, 5 U.S.C. 553(d) provides an exception to the usual requirement 
of a delayed effective date for a substantive rule that relieves a 
restriction, or when the agency finds ``good cause'' that the rule be 
made immediately effective. This rulemaking is exempt from normal 
notice-and-comment procedures because advance notice in this instance 
is unnecessary. The first change conforms to recent court decisions 
that have concluded the excised language conflicts with the FSA, and 
the second change codifies a non-controversial practice already in 
place and thus is insignificant in nature and impact.
    Further, these two changes are purely beneficial to the inmate 
population by expanding the time frame of when Time Credits begin to 
accrue and who may be eligible to earn them. As such, they ``relieve a 
restriction.'' (5 U.S.C. 553(d)(1)).
    Accordingly, BOP finds good cause for exempting this interim final 
rule from the provisions of the Administrative Procedure Act (5 U.S.C. 
553) requiring prior notice of proposed rulemaking and delay in 
effective date. Nevertheless, BOP is accepting post-promulgation public 
comments.

Unfunded Mandates Reform Act of 1995

    This interim final 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 (adjusted for 
inflation), 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.

Regulatory Flexibility Act

    The Director has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this interim final rule will not have a significant economic impact on 
a substantial number of small entities. This rule is limited to Bureau-
appropriated funds and affects individual inmates only, not small 
entities. Further, a regulatory flexibility analysis is not required 
when the agency is not required to publish a general notice of proposed 
rulemaking, as is the case here. 5 U.S.C. 601(2), 604(a).

Congressional Review Act

    This regulation is not a ``major rule'' as defined by the 
Congressional Review Act, 5 U.S.C. 804(2).

List of Subjects in 28 CFR Part 523

    First Step Act, Prisoners, Sentence computation.
    Accordingly, 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 of the Bureau of Prisons in 28 CFR 0.96, the Bureau amends 28 
CFR part 523 as follows:

PART 523--COMPUTATION OF SENTENCE

0
1. The authority citation for 28 CFR Part 523 continues 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.

Subpart E--First Step Act Time Credits

0
2. In Sec.  523.42, revise paragraph (a) to read as follows:


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.
* * * * *

0
3. In Sec.  523.44, revise paragraph (a)(3) to read as follows:


Sec.  523.44   Application of FSA Time Credits.

    (a) * * *
    (3) Serving a term of imprisonment pursuant to a conviction for an 
offense

[[Page 55744]]

under laws other than the U.S. Code (see Section 105 of the FSA, Public 
Law 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. This paragraph will not bar the 
application of FSA Time Credits for those inmates serving a term of 
imprisonment imposed in a foreign country and for which the U.S. Parole 
Commission has determined an equivalent U.S. Code sentence under 18 
U.S.C. 4106A.
* * * * *

William K. Marshall III,
Director, Federal Bureau of Prisons.
[FR Doc. 2026-17752 Filed 8-28-26; 8:45 am]
BILLING CODE 4410-05-P


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