Community Confinement, 1659-1663 [05-398]

Agencies

• Department of Justice
• Bureau of Prisons
• Prisons Bureau

[Federal Register Volume 70, Number 6 (Monday, January 10, 2005)]
[Rules and Regulations]
[Pages 1659-1663]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-398]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 570

[BOP Docket No. 1127-F]
RIN 1120-AB27


Community Confinement

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes new 
rules regarding its categorical exercise of discretion for designating 
inmates to community confinement when serving terms of imprisonment.

DATES: This rule is effective on February 14, 2005.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: The Bureau published proposed rules on this 
subject on August 18, 2004 (69 FR 51213). In the proposed rule 
document, we explained that these rules would, as a matter of policy, 
limit the amount of time that inmates may spend in community 
confinement (including Community Corrections Centers (CCCs) and home 
confinement) to the last ten percent of the prison sentence being 
served, not to exceed six months. The only exceptions to this policy 
are for inmates in specific statutorily-created programs that authorize 
greater periods of community confinement (for example, the residential 
substance abuse treatment program (18 U.S.C. 3621(e)(2)(A)) or the 
shock incarceration program (18 U.S.C. 4046(c))). The Bureau announces 
these rules as a categorical exercise of discretion under 18 U.S.C. 
3621(b).
    We received 26 comments on the proposed rule. One commenter wrote 
in support of the rule as proposed. The remaining commenters raised 
similar issues, so we respond to each issue individually as follows.
    Requests to hold a public hearing. Thirteen commenters requested 
the Bureau to hold a public hearing on the rule.
    The Administrative Procedure Act (5 U.S.C. 551-559) does not 
require a hearing for rulemaking purposes unless a hearing is required 
by another statute. 5 U.S.C. 553(c). A hearing as described in 5 U.S.C. 
556 is not required for this rulemaking by any other statute. 
Furthermore, we do not find that a hearing is necessary, as ample 
opportunity for written comment was given after publication of the 
proposed rule as required by the Administrative Procedure Act. See, 
e.g., United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 
(1972) (The Supreme Court held that the Interstate Commerce Commission 
was not required by statute to hold a hearing before rulemaking); See 
also Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995) (The court held that 
the Nuclear Regulatory Commission's (NRC) denial of a request for an 
adjudicatory hearing, was not arbitrary, capricious, or abuse of 
discretion, in light of the opportunity for public comment).
    The rule has an unreasonable economic impact. Several commenters 
complained, both generally and specifically with regard to their 
particular community corrections business (CCCs), that the rule had an 
unfair economic impact. While we acknowledge that there has been an 
impact on some individual community corrections centers, we have 
observed no severe nationwide economic impact.
    In the preamble to the proposed rule, we described the history of 
this change in our community confinement procedures as follows:
    ``Before December 2002, the Bureau operated under the theory that 
18 U.S.C. 3621(b) created broad discretion to place inmates in any 
prison facilities, including CCCs, as the designated places to serve 
terms of `imprisonment.' Under that theory, the Bureau generally 
accommodated judicial recommendations for initial CCC placements of 
non-violent, low-risk offenders serving short prison sentences. 
Consequently, before December 2002, it was possible for such inmates to 
serve their entire terms of `imprisonment' in CCCs.
    ``On December 13, 2002, the Department of Justice's Office of Legal 
Counsel (OLC) issued a memorandum concluding that the Bureau could not, 
under 18 U.S.C. 3621(b), generally designate inmates to serve terms of 
imprisonment in CCCs. OLC concluded that, if the Bureau designated an 
offender to serve a term of imprisonment in a CCC, such designation 
unlawfully altered the actual sentence imposed by the court, 
transforming a term of imprisonment into a term of community 
confinement. OLC concluded that such alteration of a court-imposed 
sentence exceeds the Bureau's authority to designate a place of 
imprisonment. OLC further opined that if section 3621(b) were 
interpreted to authorize unlimited placements in CCCs, that would 
render meaningless the specific time limitations in 18 U.S.C. 3624(c), 
which limits the amount of time an offender sentenced to imprisonment 
may serve in community confinement to the last ten percent of the 
prison sentence being served, not to exceed six months. By memorandum 
dated December 16, 2002, the Deputy Attorney General adopted the OLC 
memorandum's analysis and directed the Bureau to conform its 
designation policy accordingly.
    ``Thus, effective December 20, 2002, the Bureau changed its CCC 
designation procedures by prohibiting Federal offenders sentenced to 
imprisonment from being initially placed into CCCs rather than prison 
facilities. The Bureau announced that, as part of its procedures 
change, it would no longer honor judicial recommendations to place 
inmates in CCCs for the imprisonment portions of their sentences. 
Rather, the Bureau would now limit CCC designations to pre-release 
programming only, during the last ten percent of the prison sentence 
being served, not to exceed six months, in accordance with 18 U.S.C. 
3624(c).''
    There has been a net effect of a 4.6 percent decrease in the CCC 
population since December 2002. In December 2002, when the Bureau 
changed its community confinement procedures in accordance with the OLC 
opinion, there was a 12-15 percent drop in CCC population from January-
March 2003. The community confinement utilization patterns leveled off, 
however, and by the late summer of 2003, had begun to maintain only a 
4-5 percent decrease in CCC population. The initial adverse impact on 
the CCC population has steadily improved and should continue to improve 
in the near future as industry readjustments are made. It is important 
to note that the finalization of this rule, therefore, will essentially 
have no further economic impact.
    The rule will increase Bureau costs by increasing the number of 
inmates housed in penal facilities. Although we acknowledge that this 
change in the Bureau's CCC procedures will increase Bureau costs, we 
balance that cost against our interest in reaching a

[[Page 1660]]

decision that more accurately reflects the Bureau's mission, the text 
of 18 U.S.C. 3621(b), Congressional objectives reflected in related 
statutory provisions, and the policy determinations of the U.S. 
Sentencing Commission as expressed in the U.S. Sentencing Guidelines. 
We also note that the Bureau will be absorbing its own costs as 
necessary. As explained above, there will be only limited economic 
impact on small businesses and virtually no economic impact on any 
other entity.
    The rule will not promote nationwide consistency in community 
confinement. As we stated in the preamble to the proposed rule, the 
rule will promote consistency in the Bureau's designation of inmates to 
places of confinement by eliminating inadvertent disparities that could 
arise under the previous process.
    Congress, in enacting 18 U.S.C. 3621(b), codified its intent that 
the Bureau not show favoritism in making designation decisions: ``In 
designating the place of imprisonment or making transfers under this 
subsection, there shall be no favoritism given to prisoners of high 
social or economic status.'' 18 U.S.C. 3621(b). Indeed, eliminating 
unwarranted disparities in sentencing was a primary purpose of the 
Sentencing Reform Act of 1984. See S. Rep. No. 225, 98th Cong., 1st 
Sess. 52 (1983). However, the Bureau's system before December 2002, 
which allowed individualized CCC decisions for each inmate upon initial 
prison designation, created the possibility that it would 
unintentionally treat similar inmates differently.
    These differences in treatment could not only be unfair to the 
inmates, but they ``could invite [charges of intentional] favoritism, 
disunity, and inconsistency'' against the Bureau. Lopez v. Davis, 531 
U.S. 227, 244 (2001). This proposed rule promotes Congress' goal of 
eliminating unwarranted disparities in the sentencing and handling of 
inmates and also eliminates any concern that the Bureau might use 
community confinement to treat specific inmates or categories of 
inmates more leniently.
    Consideration of factors under 18 U.S.C. 3621(b). Several 
commenters were concerned that the new rule ``undermines the Bureau's 
statutory authority to make prisoner-specific determinations under 
Sec.  3621(b).''
    Section 3621(b) authorizes the Bureau to designate as the place of 
a prisoner's imprisonment any available facility that meets minimum 
standards of health and habitability ``that the Bureau determines to be 
appropriate and suitable.'' 18 U.S.C. 3621(b). Section 3621(b) provides 
a nonexclusive list of factors that the Bureau is to consider in 
determining what facilities are ``appropriate and suitable,'' including 
(1) the resources of the facility; (2) the nature and circumstances of 
the offense; (3) the history and characteristics of the prisoner; (4) 
any statement by the sentencing court about the purposes for which the 
sentence of imprisonment was determined to be warranted or recommending 
a type of penal or correctional facility as appropriate; and (5) any 
pertinent policy statement issued by the Sentencing Commission under 28 
U.S.C. 994(a)(2). The Bureau will continue to evaluate these factors 
when making individual designations to appropriate Bureau facilities, 
and this rule will not adversely affect such individualized 
determinations.
    The rule does not allow the Bureau to consider facility resources 
in making designation determinations. As we stated in the preamble to 
the proposed rule, the rules are consistent with 18 U.S.C. 3621(b)'s 
instruction that the Bureau consider facility resources in making 
designation determinations. 18 U.S.C. 3621(b)(1). Based on its 
experience, the Bureau has concluded that the resources of CCCs make 
them particularly well suited as placement options for the final 
portion of offenders' prison terms. This rule is based in part on a 
closer look at the particular characteristics and advantages of CCCs 
that make them best suited to particular inmates during the last ten 
percent of the prison sentence being served, not to exceed six months.
    As Congress has itself recognized, those characteristics of CCCs 
mean that they ``afford the prisoner a reasonable opportunity to adjust 
to and prepare for the prisoner's re-entry into the community.'' 18 
U.S.C. 3624(c). By ensuring that offenders sentenced to prison terms 
not be placed in CCCs except during the last ten percent of their 
prison sentences (not to exceed six months), the new rule will help 
ensure that CCCs remain available to serve the purposes for which their 
resources make them best suited.
    The rule is contrary to court precedent, the U.S. Sentencing 
Commission's Sentencing Guidelines and Congressional intent. This was a 
common theme among most of the comments. Commenters asserted that this 
rule is not consistent with the intent of existing law and Congress, 
and that federal courts have found this interpretation of the statute 
to be erroneous.
    As we stated in the preamble to the proposed rule, some courts 
upheld the new community confinement practice, see, e.g., Cohn v. 
Federal Bureau of Prisons, 2004 WL 240570 (S.D.N.Y., Feb. 10, 2004); 
Benton v. Ashcroft, 273 F. Supp.2d 1139 (S.D. Cal. 2003); while others 
have rejected it, see, e.g., Monahan v. Winn, 276 F.Supp.2d 196 (D. 
Mass. 2003); Iacoboni v. United States, 251 F.Supp. 2d 1015 (D. Mass. 
2003); Byrd v. Moore, 252 F.Supp.2d 293 (W.D.N.C. 2003).
    Several courts that disagreed with the re-interpretation concluded 
that 18 U.S.C. 3621(b) grants the Bureau broad discretion to designate 
offenders to any facility, including CCCs. See, e.g., Iacaboni, 251 F. 
Supp. 2d at 1025; Byrd, 252 F. Supp. 2d at 300-01. See also Cohn, 2004 
WL 240570 at *3 (``the BOP's interpretation that a CCC is not a place 
of imprisonment, and therefore not subject [to] Congress' general grant 
of discretion to the BOP under Sec.  3621(b), is at a minimum a 
permissible interpretation of the statute'').
    Further, we acknowledge two cases decided subsequent to the 
publication of the proposed rule which disagreed with BOP's 
interpretation of 18 U.S.C. 3621(b) and 3624(c). Goldings v. Winn, 383 
F.3d 17, 2004 WL 2005625 (1st Cir., Sept. 3, 2004) and Elwood v. Jeter, 
386 F.3d 842, 2004 WL 2331643 (8th Cir., Oct. 18, 2004). The courts in 
both cases found that section 3621(b) authorizes the Bureau to place 
inmates in CCCs at anytime during service of the prison sentence, and 
that this authority is not limited by section 3624(c) to the last ten 
percent of the sentence being served, not to exceed six months. Both 
courts also found that CCCs are a place of imprisonment.
    Nevertheless, both the Goldings and the Elwood courts held that 
section 3624(c) does not require placement in a CCC. It only obligates 
BOP to facilitate the prisoner's transition from the prison system. 
According to Elwood, 2004 WL 2331643 at *4, ``this plan may include CCC 
placement, home confinement, drug or alcohol treatment, or any other 
plan that meets the obligation of a plan that addresses the prisoner's 
re-entry into the community.'' [Emphasis added.]
    Section 3624(c) provides that, to the extent practicable, BOP shall 
assure a prisoner serving a term of imprisonment ``spends a reasonable 
part, not to exceed six months, of the last ten percent of the term 
under conditions that will afford the prisoner a reasonable opportunity 
to adjust to and to prepare for the prisoner's re-entry into the 
community.'' [Emphasis added.]
    Various courts have held that the Bureau has discretion under 18 
U.S.C. 3621(b) to place offenders sentenced to a term of imprisonment 
in CCCs. Also,

[[Page 1661]]

courts have acknowledged that the Bureau has discretion with regard to 
how it implements its mandatory pre-release custody obligation under 
Sec.  3624(c). Courts have favorably acknowledged this rulemaking as an 
appropriate means of exercising the Bureau's authority under the 
governing statutes. See Richmond v. Scibana, 387 F.3rd 602, 605 (7th 
Cir. 2004).
    Therefore, the Bureau considers it prudent to determine how to 
exercise such discretion to minimize the potential for disparity of 
treatment. Accordingly, the Bureau has considered how to exercise that 
discretion in a manner consistent with the text of Section 3621(b), 
Congressional objectives reflected in related statutory provisions, and 
the policy determinations of the U.S. Sentencing Commission expressed 
in the U.S. Sentencing Guidelines. Based on those considerations, the 
Bureau has determined to exercise its discretion categorically to limit 
inmates' community confinement to the last ten percent of the prison 
sentence being served, not to exceed six months.
    This rule is a proper means for the Bureau to exercise its 
available discretion through rulemaking. The determination to limit the 
amount of time that inmates may spend in community confinement 
(including Community Corrections Centers) and home confinement to the 
last ten percent of the prison sentence being served, not to exceed six 
months, is a rational and justifiable exercise of the Attorney 
General's discretion (as delegated to the Director, Bureau of Prisons). 
The Supreme Court has recognized that an agency head ``has the 
authority to rely on rulemaking to resolve certain issues of general 
applicability unless Congress clearly expresses an intent to withhold 
that authority.'' Lopez, 531 U.S. 230, 244, quoting American Hospital 
Assn. v. NLRB, 499 U.S. 606, 612 (1991) (agency may resolve disputes by 
industry-wide rule); see also, Yang v. INS, 79 F.3d 932, 936 (9th Cir. 
1996).
    The Supreme Court in Lopez, 531 U.S. at 231-32, upheld a Bureau 
rule that ``categorically denies early release to prisoners whose 
current offense is a felony attended by ``the carrying, possession, or 
use of a firearm.'''' The Bureau adopted that rule as an exercise of 
its discretionary authority, not as an interpretation of the statutory 
provisions. The Supreme Court held that the rule was a valid means for 
exercising discretion, and rejected plaintiffs' contention that the 
Bureau was required to adjudicate denials of early release on a case-
by-case basis for each individual.\1\ The present rule, like the Bureau 
rule in Lopez, makes a categorical exercise of the discretion available 
to the Attorney General by law. Congress has not ``clearly express[ed] 
an intent to withhold'' authority from the Attorney General to use 
rulemaking as a means of exercising that discretion.
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    \1\ The history of the Lopez litigation is also instructive. In 
1995, the Bureau of Prisons published a rule to implement early 
release incentives, and that rule included a provision that all 
inmates who were incarcerated for ``crime[s] of violence'' were 
ineligible for early release. 60 FR 27692. The courts of appeals 
divided over the validity of the Bureau's definition of crimes of 
violence, specifically whether it would include drug offenses that 
involved possession of a firearm. This litigation prompted the 
Bureau to publish a revised version of the rule in 1997, and it was 
this revised rule that was actually before the Supreme Court in 
Lopez. See 62 FR 53690. The 1997 rule, like its predecessor, was 
designed to achieve consistent administration of the incentive 
program, and it provided that offenders were excluded from early 
release eligibility if they had possessed a firearm in connection 
with their offenses. However, the 1997 rule, unlike its predecessor, 
did not implement the exclusion by defining statutory terms; 
instead, the 1997 rule relied upon ``the discretion allotted to the 
Director of the Bureau of Prisons in granting a sentence reduction 
to exclude [enumerated categories of] inmates.'' 62 FR 53690. The 
courts of appeals again split over the valiidity of the new rule, 
and the Supreme Court granted certiorari to resolve that circuit 
split. In its decision, the Supreme Court upheld the validity of the 
Bureau's new approach to limit the eligibility for early release by 
means of an exercise of discretion implemented by regulation.
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    The Bureau is not bound by U.S. Sentencing Commission Guidelines. 
Several commenters stated that the Bureau is not bound to make this 
rule by the U.S. Sentencing Commission's Sentencing Guidelines. While 
we acknowledge that we are not bound by the Guidelines, in our 
discretion, we consider it appropriate to analyze the Guidelines as one 
of many factors we considered in making this rule. The legislative 
history makes clear that, although the listed factors in 18 U.S.C. 
3621(b) are ``appropriate'' for the Bureau to consider, Congress did 
not intend, by listing some considerations, ``to restrict or limit the 
Bureau in the exercise of its existing discretion.'' S. Rep. 225, 98th 
Cong., 1st Sess. 142 (1983).
    Therefore, in addition to the listed factors, the Bureau has 
determined that it is appropriate to consider the policies of the 
Sentencing Commission reflected in Sentencing Guidelines (as well as 
policy statements promulgated under 28 U.S.C. 994(a)(2)) and 
congressional policies reflected in related statutory provisions.
    The Bureau has no empirical support for several of its assertions. 
Several commenters complained that the Bureau offered no data in 
support of two of its assertions:
    1. In the preamble to the proposed rule, the Bureau stated that the 
system before December 2002, which allowed individualized CCC decisions 
for each inmate upon initial prison designation, created the 
possibility that it would unintentionally treat similar inmates 
differently, which ``could invite [charges of intentional] favoritism, 
disunity, and inconsistency'' against the Bureau. Lopez, 531 U.S. 227, 
244.
    2. In the preamble to the proposed rule, the Bureau stated that ``a 
potential offender might reasonably perceive community confinement as a 
more lenient punishment than designation to a prison facility.''
    With regard to the first statement, we made no assertion that the 
Bureau had, in fact, treated inmates differently or shown favoritism. 
Rather, we stated that the previous procedures created the possibility 
that we would unintentionally treat similar inmates differently or, at 
least, the perception that such a possibility existed. We do not 
believe that a statement analyzing the previous situation requires 
empirical support. Further, 18 U.S.C. 3621(b) expressly states that 
``there shall be no favoritism given to prisoners of high social or 
economic status'' in Bureau designation decisions. In making this rule, 
we mean to avoid both the possibility of violating the statute's 
mandate against favoritism and the appearance of such possible 
favoritism.
    With regard to the second statement, we note that we do not 
routinely engage in gathering data regarding prisoners' perception. We 
do not believe that empirical data for this statement is necessary. The 
Bureau's experience with inmates and their families and victims has led 
us to the conclusion that placement in a CCC for reasons other than 
facilitating pre-release preparation may be perceived by the public and 
victims as diminishing the seriousness of the offense. If placement in 
a CCC diminishes the seriousness of the offense, the public and victims 
may perceive such placement as favoritism, which is expressly 
prohibited by statute.
    The Bureau is exercising its discretion incorrectly or should 
exercise it differently to allow for greater opportunity for community 
confinement. Several commenters raised this issue. This rule is 
intended to inform inmates and the public of how the Bureau intends to 
exercise its discretion. Contrary to the commenters views, the Bureau 
is, through this rulemaking, choosing to exercise its discretion in a 
manner that is consistent with the statutes cited in the rule, as 
described above.

[[Page 1662]]

    The Bureau should put detailed guidelines in the rule describing 
how the rule will be applied. One commenter requests the Bureau to 
state in rule text ``detailed guidelines'' on how the rule will be 
effected. Such detail pertaining to the rule text will be set forth as 
part of a Bureau policy statement, which is a more appropriate vehicle 
through which to provide added guidance to staff as to how inmates 
should be considered for pre-release programming.
    The proposed rule is unfair to federal inmates. One commenter 
complained that the rule is unfair to federal inmates because they 
``are required to do over 75 percent of their sentencing, while State 
inmates do less than half. State inmates are also allowed pardon and 
clemency while we have taken parole from the federal inmates.''
    This rule is not meant to reach aspects of State systems of 
incarceration. The Bureau does not control State inmates and how much 
of their sentences they are required to serve. The Bureau may only 
exercise its discretion in the context of the federal system of 
incarceration, and chooses to do so as manifested in the language of 
this rule. Requiring federal inmates to serve their sentences in Bureau 
institutions more closely adheres to the spirit and intent of Federal 
criminal law. The Bureau simply enforces the laws enacted by Congress 
and implemented through the courts.
    The rule does not allow for inmates to have enough time to 
reintegrate into the community before release. Several commenters 
raised this concern. The Bureau strives to prepare inmates adequately 
and appropriately for release into the community on expiration of their 
sentence. When inmates near the end of their term of imprisonment, the 
Bureau engages its release preparation program to help assist them in 
re-establishing and/or maintaining community ties and otherwise re-
integrating as a productive and law-abiding member of the community. 
The rule is consistent with congressional judgments as to the 
appropriate and reasonable amount of time to be spent in pre-release 
custody. 18 U.S.C. 3624(c).
    The Bureau incorrectly published the proposed rule without 
consulting Congress or attempting to revise the law. In making this 
rule, the Bureau has complied with all the rulemaking requirements in 
the Administrative Procedure Act (5 U.S.C. 551 et seq. Because no 
change to the statute was necessary, there was no need to address 
Congress and request a change to the United States Code.
    The Bureau failed to follow current law governing the rulemaking 
process. One commenter contends that the rule is procedurally defective 
for failure to follow requirements set forth in a number of Executive 
Orders. Our general response is that the rule is not procedurally 
defective in this regard because we complied with the requirements in 
these Executive Orders. However, we address each of the Executive 
Orders and other law that the commenter raised:
    Executive Order 12866, Regulatory Planning and Review, requires 
that agencies provide to the Office of Information and Regulatory 
Affairs (OIRA) within the Office of Management and Budget (OMB) an 
``assessment of the potential costs and benefits of the regulatory 
action, including an explanation of the manner in which the regulatory 
action is consistent with a statutory mandate and, to the extent 
permitted by law, promotes the President's priorities and avoids undue 
interference with State, local, and tribal governments in the exercise 
of their governmental functions.'' E.O. 12866, Section 6(3)(B)(ii).
    We provided such an assessment to OIRA, and in doing so have 
complied with the Executive Order. The preamble of the proposed rule 
provides sufficient statutory basis and contains no indication of undue 
influence on local governments. The rule is not procedurally defective 
for this reason.
    Likewise, with regard to Executive Order 13132, we certified in the 
proposed rule that this regulation 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, 
under Executive Order 13132, we determined that this rule does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism Assessment. This rule is not procedurally defective for 
failure to so certify under E.O. 13132.
    In the proposed rule, we certified that, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), this regulation will not have a 
significant economic impact upon a substantial number of small 
entities. In the proposed rule, we stated that the economic impact of 
this rule is limited to Bureau appropriated funds. While we recognize 
that community confinement centers are sometimes small businesses, and 
that these small businesses will be impacted by this rule, the impact 
does not rise to the level of a ``significant economic impact.''
    This rule is not a ``major rule'' as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.
    As we explained above, the 4.6 percentage decrease in the number of 
inmates in community confinement since the date of the change in the 
Bureau's community confinement procedures does not rise to an economic 
impact of $100,000,000 or more. Rather, the change in the Bureau's 
community confinement procedures had an economic impact resulting in a 
loss of $8 million annually (calculated based on a loss of revenue 
resulting from a 4.6 percent decrease in CCC population).
    E.O. 13198, issued on January 29, 2001, describes responsibilities 
of a number of departments and offices within the Federal government 
with regard to a ``national effort to expand opportunities for faith-
based and other community organizations,'' but none of these are 
specific to rulemaking. Section 6 of this E.O. only requires that ``All 
Executive Departments and Agencies'' must designate an agency liaison 
to the White House Office of Faith-Based and Community Initiatives 
(OFBCI) and cooperate with the OFBCI as needed. These requirements do 
not otherwise impact rulemaking. The Bureau has, therefore, not failed 
to follow any rulemaking requirement under this E.O.
    Likewise, E.O. 13272, entitled ``Proper Consideration of Small 
Entities in Agency Rulemaking'' heightens the need for compliance with 
the Regulatory Flexibility Act, but does not appear to impose further 
rulemaking procedural requirements. Again, the Bureau has not failed to 
follow any rulemaking requirement under this E.O.
    Finally, another commenter claimed a violation of the Paperwork 
Reduction Act, which requires all federal agencies to ``minimize the 
paperwork burden for individuals, small businesses, * * * resulting 
from the collection of information by or for the Federal Government.'' 
44 U.S.C. 3501(1). This rule does not include anything that could be 
construed as a collection of information by or for the Federal 
Government. The Bureau requires no paperwork or additional forms, etc., 
from small businesses or any other non-federal entity as a result of 
this

[[Page 1663]]

rulemaking. The Paperwork Reduction Act, therefore, was not violated by 
the proposed rule.
    Accordingly, we adopt the proposed rule as final, with only the 
following change: We delete the word ``pre-release'' from Sec.  
570.21(b) to allow for the possibility that Congress, in the future, 
may statutorily identify programs which require CCC placement for other 
than pre-release purposes. This minor deletion will allow the Bureau to 
avoid unnecessarily limiting the rule's application.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined to constitute ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866 and, 
accordingly, it was reviewed by OMB.
    BOP has assessed the costs and benefits of this rule as required by 
Executive Order 12866 Section 1(b)(6) and has made a reasoned 
determination that the benefits of this rule justify its costs. This 
rule will have the benefit of eliminating confusion in the courts that 
has been caused by the change in the Bureau's statutory interpretation, 
while allowing us to continue to operate under revised statutory 
interpretation. There will be no new costs associated with this 
rulemaking.

Executive Order 13132

    This regulation 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, 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 regulation and by 
approving it certifies that it will not have a significant economic 
impact upon a substantial number of small entities for the following 
reasons: This rule pertains to the correctional management of offenders 
committed to the custody of the Attorney General or the Director of the 
Bureau of Prisons, and its economic impact is limited to the Bureau's 
appropriated funds.

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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

List of Subjects in 28 CFR Part 570

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
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 revise 28 CFR part 570 as set forth below.

Subchapter D--Community Programs and Release

PART 570--COMMUNITY PROGRAMS

0
1. Revise the authority citation for 28 CFR part 570 to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 751, 3621, 3622, 3624, 4001, 
4042, 4081, 4082 (Repealed in part as to offenses committed on or 
after November 1, 1987), 4161-4166, 5006-5024 (Repealed October 12, 
1984, as to offenses committed after that date), 5039; 28 U.S.C. 
509, 510.

0
2. Amend part 570 by adding subpart B consisting of Sec. Sec.  570.20 
and 570.21 to read as follows:

Subpart B--Community Confinement

Sec.
570.20 What is the purpose of this subpart?
570.21 How will the Bureau decide when to designate inmates to 
community confinement?


Sec.  570.20  What is the purpose of this subpart?

    (a) This subpart provides the Bureau of Prisons' (Bureau) 
categorical exercise of discretion for designating inmates to community 
confinement. The Bureau designates inmates to community confinement 
only as part of pre-release custody and programming which will afford 
the prisoner a reasonable opportunity to adjust to and prepare for re-
entry into the community.
    (b) As discussed in this subpart, the term ``community 
confinement'' includes Community Corrections Centers (CCC) (also known 
as ``halfway houses'') and home confinement.


Sec.  570.21  When will the Bureau designate inmates to community 
confinement?

    (a) The Bureau will designate inmates to community confinement only 
as part of pre-release custody and programming, during the last ten 
percent of the prison sentence being served, not to exceed six months.
    (b) We may exceed these time-frames only when specific Bureau 
programs allow greater periods of community confinement, as provided by 
separate statutory authority (for example, residential substance abuse 
treatment program (18 U.S.C. 3621(e)(2)(A)), or shock incarceration 
program (18 U.S.C. 4046(c)).

[FR Doc. 05-398 Filed 1-7-05; 8:45 am]
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