Drug Abuse Treatment Program, 43367-43370 [2015-17707]
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Federal Register / Vol. 80, No. 140 / Wednesday, July 22, 2015 / Proposed Rules
Issued: July 16, 2015.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2015–17920 Filed 7–21–15; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 550
[BOP–1168–P]
RIN 1120–AB68
Drug Abuse Treatment Program
Bureau of Prisons, Justice.
Proposed rule.
AGENCY:
ACTION:
In this document, the Bureau
of Prisons (Bureau) proposes revisions
to the Residential Drug Abuse
Treatment Program (RDAP) regulations
to allow greater inmate participation in
the program and positively impact
recidivism rates.
DATES: Comments are due by September
21, 2015.
ADDRESSES: The public is encouraged to
submit comments on this proposed rule
using the www.regulations.gov comment
form. Written comments may also be
submitted to the Rules Unit, Office of
General Counsel, Bureau of Prisons, 320
First Street NW., Washington, DC
20534. You may view an electronic
version of this regulation at
www.regulations.gov. When submitting
comments electronically you must
include the BOP Docket Number in the
subject box.
FOR FURTHER INFORMATION CONTACT:
Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202)
307–2105.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Posting of Public Comments
Please note that all comments
received are considered part of the
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the commenter.
If you want to submit personal
identifying information (such as your
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posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You must also locate
all the personal identifying information
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you do not want posted online in the
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identified and located as set forth above
will not be placed in the public docket
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appointment, please see the FOR
FURTHER INFORMATION CONTACT
paragraph.
Discussion
In this document, the Bureau
proposes revisions to the Residential
Drug Abuse Treatment Program (RDAP)
regulations in four areas to allow greater
inmate participation in the program and
positively impact recidivism rates.
Specifically, the Bureau proposes to (1)
remove the regulatory requirement for
RDAP written testing because it is more
appropriate to assess an inmate’s
progress through clinical evaluation of
behavior change (the written test is no
longer used in practice); (2) remove
existing regulatory provisions which
automatically expel inmates who have
committed certain acts (e.g., abuse of
drugs or alcohol, violence, attempted
escape); (3) limit the time frame for
review of prior offenses for early release
eligibility purposes to ten years before
the date of federal imprisonment; and
(4) lessen restrictions relating to early
release eligibility.
Community Treatment Services.
Currently, the Bureau’s regulations
contain the term ‘‘Transitional drug
abuse treatment (TDAT)’’ in 28 CFR
550.53(a)(3) and in the title and
paragraphs (a) and (b) of § 550.56. We
propose to replace this phrase because
the name of this program has been
changed to ‘‘Community Treatment
Services (CTS).’’ This is a minor change
to more accurately reflect the nature of
the treatment program.
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§ 550.50 Purpose and scope. We
propose changes to this regulation to
more accurately describe the purpose of
the subpart and to reflect the source of
drug treatment services within the
Bureau of Prisons. The current
regulation states that Bureau facilities
have drug abuse treatment specialists
who are supervised by a Coordinator
and that facilities with residential drug
abuse treatment programs (RDAP)
should have additional specialists for
treatment in the RDAP unit. This is
inaccurate. We propose to change the
regulation to explain that the Bureau’s
drug abuse treatment programs, which
include drug abuse education, RDAP
and non-residential drug abuse
treatment services, are provided by the
Psychology Services Department.
We likewise propose to make a minor
corresponding change in § 550.53(a)(1),
which also refers inaccurately to the
Drug Abuse Program Coordinator, when
instead the course of activities
referenced in that regulation is provided
by the Psychology Services Department.
§ 550.53 Residential Drug Abuse
Treatment Program (RDAP)(f)(2). The
Bureau proposes to remove
subparagraph (f)(2) of § 550.53, which
requires inmates to pass RDAP testing
procedures and refers to an RDAP exam.
The RDAP program no longer includes
written testing as a requirement for
completion of the program. Instead,
RDAP uses clinical observation and
clinical evaluation of inmate behavior
change to assess readiness for
completion. Therefore, the current
language is inaccurate and imposes a
requirement upon inmates that no
longer exists.
In 2010, the Bureau converted the
Residential Drug Abuse Treatment
Programs to the Modified Therapeutic
Community Model of treatment (MTC).
This evidenced-based model is designed
to assess progress through treatment as
determined by the participants’
completion of treatment goals and
activities on their individualized
treatment plan, and demonstrated
behavior change. Each participant
jointly works with their treatment
specialist to create the content of their
treatment plan. Every three months, or
more often if necessary, each participant
meets with their clinical team (four or
more treatment staff) to review their
progress in treatment. Progress in
treatment is determined through
assessing the accomplishment of their
treatment goals and activities, along
with demonstrated behavior change,
such as improved personal and social
conduct, no disciplinary incidents, etc.
Unsatisfactory progress is evident when
the participant does not accomplish
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their treatment goals and does not
demonstrate mastery of skill
development.
There are several studies about the
effectiveness of the MTC model of
treatment. The most seminal study
pertaining to this topic is titled
‘‘Outcome Evaluation of A Prison
Therapeutic Community for Substance
Abuse Treatment.’’ 1
This behavioral form of assessing
progress is a much more powerful form
of assessment than assessing the results
of a written test. The written test
assesses knowledge, but knowledge
does not necessarily demonstrate
whether the program has positively
affected an individual’s behavior or
addictive lifestyle.
All of the treatment specialists in the
Bureau have a doctorate degree in
psychology. They are well qualified to
use their knowledge of treatment and
the behavior of individuals suffering
from substance abuse to objectively
determine if a participant is ready to
complete the program. There are three
decades of evaluation research that
support the efficacy of the therapeutic
community model of treatment. The
most comprehensive source of program
description, theory, and summary of
research associated with this model of
treatment is found in the book entitled
The Therapeutic Community: Theory,
Model, and Method. New York: Springer
Publishing Company, Inc. (De Leon, G.
(2000).
§ 550.53(g) Expulsion from RDAP. We
propose to remove § 550.53(g)(3), which
requires Discipline Hearing Officers
(DHOs) to remove an inmate
automatically from RDAP if there is a
finding that the inmate has committed
a prohibited act involving alcohol,
drugs, violence, escape, or any 100-level
series incident.
Removing the language would give
the Bureau more latitude and clinical
discretion when determining which
inmates should be expelled from the
program. If the language is deleted,
inmates will then only be expelled from
RDAP according to criteria in
§ 550.53(g)(1) which allows inmates to
be removed from the program by the
Drug Abuse Program Coordinator
because of disruptive behavior related to
the program or unsatisfactory progress
in treatment, and requires at least one
formal warning before removal, unless
there is documented lack of compliance
and the inmate’s continued presence
1 Wexler, H., Falkin, G., Lipton, D., (1990).
Outcome Evaluation of A Prison Therapeutic
Community for Substance Abuse Treatment.
Criminal Justice and Behavior, vol.17 No.1, March
1990 71–92, 1990 American Association for
Correctional Psychology.
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would present an immediate problem
for staff and other inmates.
Removing paragraph (g)(3) removes
the automatic expulsion of inmates
committing the listed prohibited acts
and allows for greater possibility of
continuance of the program for inmates
with discipline problems.
§ 550.55(b) Inmates not eligible for
early release. We propose to make two
changes to § 550.55(b). The first is to
modify the current language of (b)(4),
which precludes inmates from
consideration for early release if they
have a prior felony or misdemeanor
conviction for homicide, forcible rape,
robbery, aggravated assault, arson,
kidnaping, or an offense that involves
sexual abuse of minors. The Bureau
proposes to modify the language of
(b)(4) to clarify that we intend to limit
consideration of ‘‘prior felony or
misdemeanor’’ convictions to those
which were imposed within the ten
years prior to the date of sentencing for
the inmate’s current commitment. By
making this change, the Bureau clarifies
that it will not preclude from early
release eligibility those inmates whose
prior felony or misdemeanor
convictions were imposed longer than
ten years before the date of sentencing
for the inmate’s current commitment.
Title 18 U.S.C. 3621(e) provides the
Director of the Bureau of Prisons the
discretion to grant an early release of up
to one year upon the successful
completion of a residential drug abuse
treatment program. In exercising the
Director’s statutory discretion, we
considered the crimes of homicide,
rape, robbery, aggravated assault, arson,
and kidnaping. In the FBI’s Uniform
Crime Reporting (UCR) Program, violent
crime is composed of four offenses:
Murder and nonnegligent manslaughter,
rape, robbery, and aggravated assault.
Violent crimes are defined in the UCR
Program as those offenses which involve
force or threat of force. The Director
exercised his discretion, therefore, to
include these categories of violent
crimes and also expanded the list to
include arson and kidnaping, as they
also are crimes of an inherently violent
nature and particular dangerousness to
the public.
The Director exercises discretion to
deny early release eligibility to inmates
who have a prior felony or misdemeanor
conviction for theses offenses because
commission of such offenses rationally
reflects the view that such inmates
displayed readiness to endanger the
public. The UCR explained that
‘‘because of the variances in
punishment for the same offenses in
different state codes, no distinction
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between felony and misdemeanor
crimes was possible.’’
The application of national standards
to the numerous local, state, tribal, and
federal prior convictions promotes
uniformity, but creates unique issues
since each separate entity will have its
own criminal statutory schemes in
which offenses may be categorized as
either misdemeanors or felonies.
Limiting the Bureau to an analysis of
how an offense is categorized in local,
state, tribal, or federal criminal codes,
rather than to an analysis of the nature
of the prior offense, would effectively
prevent the Director from exercising the
discretion authorized by 18 U.S.C.
3621(e). Furthermore, eliminating the
analysis of prior violent misdemeanor
convictions would allow inmates to
receive the benefit of early release
merely because of the manner in which
the prior convictions were categorized.
Additionally, 28 CFR 550.55(b)(6)
provides that inmates who have been
convicted of an attempt, conspiracy, or
other offense which involved certain
underlying offenses are also precluded
from early release eligibility. Many state
statutes provide that ‘‘attempt’’
convictions are to be categorized as one
degree lower than the underlying
offense (e.g., Alaska Statutes sec.
11.31.100(d), N.C. Gen Stat. sec. 14–2.5,
Tex. Penal Code sec. 15.01(d), and
Wash. Rev. Code sec. 9A.28.020(3)).
Therefore, eliminating the analysis of
prior misdemeanor convictions may
result in offenders convicted of
attempting to commit a precluding
offense being found eligible for early
release, despite the provisions of 28 CFR
550.55(b)(6).
Further, based on a random sampling
of inmates who participated in RDAP
but were precluded from RDAP early
release eligibility, the Bureau estimates
that of the 856 inmates precluded in the
year 2014 based only on convictions for
prior offense, at least half that number
would have been eligible for early
release if the Bureau had not considered
prior offenses greater than 10 years old.
The Fiscal Year 2015 estimated annual
marginal rate to incarcerate an inmate in
the Bureau of Prisons is $11,324 per
inmate. Based on an estimate of 400
inmates released up to a year early if
this proposed rule change is made, that
could equate to a cost avoidance of over
$4.5 million per year.
We also propose to narrow the
language in § 550.55(b)(6) relating to
early release eligibility. In § 550.55(b),
the Director exercises his discretion to
disallow particular categories of inmates
from eligibility for early release,
including, in (b)(6), those who were
convicted of an attempt, conspiracy, or
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other offense which involved an
underlying offense listed in paragraph
(b)(4) and/or (b)(5) of § 550.55.
We propose to narrow the language of
§ 550.55(b)(6) to preclude only those
inmates whose prior conviction
involved direct knowledge of the
underlying criminal activity and who
either participated in or directed the
underlying criminal activity. The
proposed change would more precisely
tailor the regulation to the congressional
intent to exclude from early release
consideration only those inmates who
have been convicted of a violent offense.
Furthermore, the changed language
would potentially expand early release
benefits to more inmates.
Beginning in 1991, in coordination
with the National Institute on Drug
Abuse, the Bureau conducted a 3-year
outcome study of the RDAP. Federal
Bureau of Prisons (2000). TRIAD Drug
Treatment Evaluation Project Final
Report of Three-Year Outcomes: Part I.
(‘‘TRIAD Study’’). The study evaluated
the effect of treatment on both male and
female inmates (1,842 men and 473
women). This study demonstrates that
the Bureau’s RDAP makes a positive
difference in the lives of inmates and
improves public safety.
The TRIAD study showed that the
RDAP program is effective in reducing
recidivism. Male participants were 16
percent less likely to recidivate and 15
percent less likely to relapse than
similarly situated inmates who do not
participate in residential drug abuse
treatment for up to 3 years after release.
The analysis also found that female
inmates who participate in RDAP are 18
percent less likely to recidivate than
similarly situated female inmates who
do not participate in treatment.
The TRIAD study defined criminal
recidivism was defined two ways: (1)
An arrest for a new offense or (2) an
arrest for a new offense or supervision
revocation. Revocation was defined as
occurring only when the revocation was
solely the result of a technical violation
of one or more conditions of supervision
(e.g., detected drug use, failure to report
to probation officer). Drug use as a postrelease outcome, for the purposes of the
study, referred to the first occurrence of
drug or alcohol use as reported by U.S.
Probation officers (i.e., a positive
urinalysis (u/a), refusal to submit to a
urinalysis, admission of drug use to the
probation officer, or a positive
breathalyser test).
Offenders who completed the
residential drug abuse treatment
program and had been released to the
community for three years were less
likely to be re-arrested or to be detected
for drug use than were similar inmates
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who did not participate in the drug
abuse treatment program. Specifically,
44.3 percent of male inmates who
completed the program were likely to be
re-arrested or revoked within three years
after release to supervision in the
community, compared to 52.5 percent of
those inmates who did not receive such
treatment. For women, 24.5 percent of
those who completed the residential
drug abuse treatment program were
arrested or revoked within three years
after release, compared to 29.7 percent
of the untreated women.
With respect to drug use, 49.4 percent
of men who completed treatment were
likely to use drugs within 3 years
following release, compared to 58.5
percent of those who did not receive
treatment. Among female inmates who
completed treatment, 35.2 percent were
likely to use drugs within the three-year
postrelease period in the community,
compared to 42.6 percent of those who
did not receive such treatment.
§ 550.56 Community Transitional Drug
Abuse Treatment Program (TDAT).
In addition to changing ‘‘Transitional
Drug Abuse Treatment Program
(TDAT)’’ to ‘‘Community Treatment
Services (CTS)’’ throughout this
regulation as indicated earlier, we also
propose to delete paragraph (c) which
appears to require that inmates
successfully completing RDAP and
participating in transitional treatment
programming must participate in such
programming for one hour per month.
The provision in the regulation is an
error. It does not relate to Community
Treatment Services (CTS), but instead
relates to RDAP. It is therefore
unnecessary to retain this language. The
substance of this language will be
retained as implementing text in the
relevant policy statement as part of
RDAP procedures.
Executive Orders 12866 and 13563
This proposed regulation has been
drafted and reviewed in accordance
with Executive Order 12866,
‘‘Regulatory Planning and Review,’’
section 1(b), Principles of Regulation,
and Executive Order 13563, ‘‘Improving
Regulation and Regulatory Review.’’
These executive orders 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 equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
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43369
reducing costs, of harmonizing rules,
and of promoting flexibility.
The Director, Bureau of Prisons has
determined that this proposed rule is a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f), and
accordingly this proposed rule has been
reviewed by the Office of Management
and Budget.
As context regarding the current
impact of the RDAP (i.e., without the
changes proposed in this rule), in FY
2014, 18,102 inmates participated in the
residential drug abuse treatment
program. Title 18 U.S.C. 3621(e)(2)
allows the Bureau to grant a non-violent
offender up to one year off his/her term
of imprisonment for successful
completion of the RDAP. In fiscal year
2014, 5,229 inmates received a
reduction in their term of imprisonment
resulting in a cost avoidance of nearly
$50 million based on this law (average
reduction was 10.4 months and the
marginal cost avoidance was $10,994
annually). The changes made by this
proposed rule would increase the
number of current inmates who benefit
from the RDAP program and would
increase the number of inmates who
may be eligible for early release, thereby
resulting in cost avoidance to the
Bureau in the future.
For instance, the change we propose
to make to § 550.55(b)(6), regarding
changing ‘‘other offense’’ to ‘‘solicitation
to commit,’’ based on prior year data
(Jan 2014 through Dec 2014), we
estimate that approximately 45 inmates
would be made eligible for early release
as a result of the suggested change.
We will not require more resources in
order to put more individuals through
RDAP. RDAP is a nine-month program.
The program has a treatment capacity
large enough to accommodate about
8,400 participants at any given time.
Therefore, during a year, program
capacity is filled twice, which means
that at least 16,800 participants can be
accommodated every year. It is not
uncommon for more than 16,800 to
participate. For example, in FY 2014,
approximately 18,000 inmates
participated. This number also reflects
inmates who may drop out of the
program and are replaced with other
inmates on the wait list.
Executive Order 13132
This proposed regulation would 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. Under Executive
Order 13132, this rulemaking does not
have sufficient federalism implications
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L. 91–452, 84 Stat. 933 (18 U.S.C. Chapter
223).
for which we would prepare a
Federalism Assessment.
■
Regulatory Flexibility Act
2. Revise § 550.50 to read as follows:
The Director of the Bureau of Prisons,
under the Regulatory Flexibility Act (5
U.S.C. 605(b)), reviewed this regulation.
By approving it, the Director certifies
that it will not have a significant
economic impact upon a substantial
number of small entities because: This
proposed rule is about 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.
§ 550.50
Unfunded Mandates Reform Act of
1995
§ 550.53 Residential Drug Abuse
Treatment Program (RDAP).
This proposed rule will not cause
State, local and tribal governments, or
the private sector, to spend
$100,000,000 or more in any one year,
and it will not significantly or uniquely
affect small governments. We do not
need to take action under the Unfunded
Mandates Reform Act of 1995.
(a) * * *
(1) Unit-based component. Inmates
must complete a course of activities
provided by the Psychology Services
Department in a treatment unit set apart
from the general prison population. This
component must last at least six
months.
*
*
*
*
*
(3) Community Treatment Services
(CTS). Inmates who have completed the
unit-based program and (when
appropriate) the follow-up treatment
and transferred to a community-based
program must complete CTS to have
successfully completed RDAP and
receive incentives. The Warden, on the
basis of his or her discretion, may find
an inmate ineligible for participation in
a community-based program; therefore,
the inmate cannot complete RDAP.
*
*
*
*
*
(f) Completing the unit-based
component of RDAP. To complete the
unit-based component of RDAP, inmates
must have satisfactory attendance and
participation in all RDAP activities.
(g) Expulsion from RDAP. (1) Inmates
may be removed from the program by
the Drug Abuse Program Coordinator
because of disruptive behavior related to
the program or unsatisfactory progress
in treatment.
(2) Ordinarily, inmates must be given
at least one formal warning before
removal from RDAP. A formal warning
is not necessary when the documented
lack of compliance with program
standards is of such magnitude that an
inmate’s continued presence would
create an immediate and ongoing
problem for staff and other inmates.
(3) We may return an inmate who
withdraws or is removed from RDAP to
his/her prior institution (if we had
transferred the inmate specifically to
participate in RDAP).
*
*
*
*
*
Small Business Regulatory Enforcement
Fairness Act of 1996
This proposed rule is not a major rule
as defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This proposed rule
would 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 foreignbased companies in domestic and
export markets.
List of Subjects in 28 CFR Part 550
Prisoners.
Charles E. Samuels, Jr.,
Director, Bureau of Prisons.
Under the 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 propose to
amend 28 CFR part 550 as follows:
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PART 550—DRUG PROGRAMS
1. The authority citation for part 550
continues to read as follows:
■
Authority: 5 U.S.C. 301; 18 U.S.C. 3521–
3528, 3621, 3622, 3624, 4001, 4042, 4046,
4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987),
5006–5024 (Repealed October 12, 1984 as to
offenses committed after that date), 5039; 21
U.S.C. 848; 28 U.S.C. 509, 510; Title V, Pub.
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Purpose and scope.
The purpose of this subpart is to
describe the Bureau’s drug abuse
treatment programs for the inmate
population, to include drug abuse
education, non-residential drug abuse
treatment services, and residential drug
abuse treatment programs (RDAP).
These services are provided by
Psychology Services department.
■ 3. Amend § 550.53 by revising
paragraphs (a)(1), (a)(3), (f), and (g) to
read as follows:
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4. Revise § 550.55(b)(4) and (6) to read
as follows:
■
§ 550.55
Eligibility for early release.
*
*
*
*
*
(b) * * *
(4) Inmates who have a prior felony or
misdemeanor conviction within the ten
years prior to the date of sentencing for
their current commitment for:
(i) Homicide (including deaths caused
by recklessness, but not including
deaths caused by negligence or
justifiable homicide);
(ii) Forcible rape;
(iii) Robbery;
(iv) Aggravated assault;
(v) Arson;
(vi) Kidnaping; or
(vii) An offense that by its nature or
conduct involves sexual abuse offenses
committed upon minors;
*
*
*
*
*
(6) Inmates who have been convicted
of an attempt, conspiracy, or solicitation
to commit an underlying offense listed
in paragraph (b)(4) and/or (b)(5) of this
section; or
*
*
*
*
*
■ 5. Revise § 550.56 to read as follows:
§ 550.56
(CTS).
Community Treatment Services
(a) For inmates to successfully
complete all components of RDAP, they
must participate in CTS. If inmates
refuse or fail to complete CTS, they fail
RDAP and are disqualified for any
additional incentives.
(b) Inmates with a documented drug
use problem who did not choose to
participate in RDAP may be required to
participate in CTS as a condition of
participation in a community-based
program, with the approval of the
Supervisory Community Treatment
Services Coordinator.
[FR Doc. 2015–17707 Filed 7–21–15; 8:45 am]
BILLING CODE 4410–05–P
POSTAL REGULATORY COMMISSION
39 CFR part 3050
[Docket No. RM2015–11; Order No. 2593]
Periodic Reporting
Postal Regulatory Commission.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Commission is noticing a
recent Postal Service filing requesting
that the Commission initiate an informal
rulemaking proceeding to consider
changes to analytical principles relating
to periodic reports (Proposal Three).
This notice informs the public of the
filing, invites public comment, and
takes other administrative steps.
SUMMARY:
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Agencies
[Federal Register Volume 80, Number 140 (Wednesday, July 22, 2015)]
[Proposed Rules]
[Pages 43367-43370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17707]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 550
[BOP-1168-P]
RIN 1120-AB68
Drug Abuse Treatment Program
AGENCY: Bureau of Prisons, Justice.
ACTION: Proposed rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes
revisions to the Residential Drug Abuse Treatment Program (RDAP)
regulations to allow greater inmate participation in the program and
positively impact recidivism rates.
DATES: Comments are due by September 21, 2015.
ADDRESSES: The public is encouraged to submit comments on this proposed
rule using the www.regulations.gov comment form. Written comments may
also be submitted to the Rules Unit, Office of General Counsel, Bureau
of Prisons, 320 First Street NW., Washington, DC 20534. You may view an
electronic version of this regulation at www.regulations.gov. When
submitting comments electronically you must include the BOP Docket
Number in the subject box.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at
www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the For Further Information Contact paragraph.
Discussion
In this document, the Bureau proposes revisions to the Residential
Drug Abuse Treatment Program (RDAP) regulations in four areas to allow
greater inmate participation in the program and positively impact
recidivism rates. Specifically, the Bureau proposes to (1) remove the
regulatory requirement for RDAP written testing because it is more
appropriate to assess an inmate's progress through clinical evaluation
of behavior change (the written test is no longer used in practice);
(2) remove existing regulatory provisions which automatically expel
inmates who have committed certain acts (e.g., abuse of drugs or
alcohol, violence, attempted escape); (3) limit the time frame for
review of prior offenses for early release eligibility purposes to ten
years before the date of federal imprisonment; and (4) lessen
restrictions relating to early release eligibility.
Community Treatment Services. Currently, the Bureau's regulations
contain the term ``Transitional drug abuse treatment (TDAT)'' in 28 CFR
550.53(a)(3) and in the title and paragraphs (a) and (b) of Sec.
550.56. We propose to replace this phrase because the name of this
program has been changed to ``Community Treatment Services (CTS).''
This is a minor change to more accurately reflect the nature of the
treatment program.
Sec. 550.50 Purpose and scope. We propose changes to this
regulation to more accurately describe the purpose of the subpart and
to reflect the source of drug treatment services within the Bureau of
Prisons. The current regulation states that Bureau facilities have drug
abuse treatment specialists who are supervised by a Coordinator and
that facilities with residential drug abuse treatment programs (RDAP)
should have additional specialists for treatment in the RDAP unit. This
is inaccurate. We propose to change the regulation to explain that the
Bureau's drug abuse treatment programs, which include drug abuse
education, RDAP and non-residential drug abuse treatment services, are
provided by the Psychology Services Department.
We likewise propose to make a minor corresponding change in Sec.
550.53(a)(1), which also refers inaccurately to the Drug Abuse Program
Coordinator, when instead the course of activities referenced in that
regulation is provided by the Psychology Services Department.
Sec. 550.53 Residential Drug Abuse Treatment Program (RDAP)(f)(2).
The Bureau proposes to remove subparagraph (f)(2) of Sec. 550.53,
which requires inmates to pass RDAP testing procedures and refers to an
RDAP exam. The RDAP program no longer includes written testing as a
requirement for completion of the program. Instead, RDAP uses clinical
observation and clinical evaluation of inmate behavior change to assess
readiness for completion. Therefore, the current language is inaccurate
and imposes a requirement upon inmates that no longer exists.
In 2010, the Bureau converted the Residential Drug Abuse Treatment
Programs to the Modified Therapeutic Community Model of treatment
(MTC). This evidenced-based model is designed to assess progress
through treatment as determined by the participants' completion of
treatment goals and activities on their individualized treatment plan,
and demonstrated behavior change. Each participant jointly works with
their treatment specialist to create the content of their treatment
plan. Every three months, or more often if necessary, each participant
meets with their clinical team (four or more treatment staff) to review
their progress in treatment. Progress in treatment is determined
through assessing the accomplishment of their treatment goals and
activities, along with demonstrated behavior change, such as improved
personal and social conduct, no disciplinary incidents, etc.
Unsatisfactory progress is evident when the participant does not
accomplish
[[Page 43368]]
their treatment goals and does not demonstrate mastery of skill
development.
There are several studies about the effectiveness of the MTC model
of treatment. The most seminal study pertaining to this topic is titled
``Outcome Evaluation of A Prison Therapeutic Community for Substance
Abuse Treatment.'' \1\
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\1\ Wexler, H., Falkin, G., Lipton, D., (1990). Outcome
Evaluation of A Prison Therapeutic Community for Substance Abuse
Treatment. Criminal Justice and Behavior, vol.17 No.1, March 1990
71-92, 1990 American Association for Correctional Psychology.
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This behavioral form of assessing progress is a much more powerful
form of assessment than assessing the results of a written test. The
written test assesses knowledge, but knowledge does not necessarily
demonstrate whether the program has positively affected an individual's
behavior or addictive lifestyle.
All of the treatment specialists in the Bureau have a doctorate
degree in psychology. They are well qualified to use their knowledge of
treatment and the behavior of individuals suffering from substance
abuse to objectively determine if a participant is ready to complete
the program. There are three decades of evaluation research that
support the efficacy of the therapeutic community model of treatment.
The most comprehensive source of program description, theory, and
summary of research associated with this model of treatment is found in
the book entitled The Therapeutic Community: Theory, Model, and Method.
New York: Springer Publishing Company, Inc. (De Leon, G. (2000).
Sec. 550.53(g) Expulsion from RDAP. We propose to remove Sec.
550.53(g)(3), which requires Discipline Hearing Officers (DHOs) to
remove an inmate automatically from RDAP if there is a finding that the
inmate has committed a prohibited act involving alcohol, drugs,
violence, escape, or any 100-level series incident.
Removing the language would give the Bureau more latitude and
clinical discretion when determining which inmates should be expelled
from the program. If the language is deleted, inmates will then only be
expelled from RDAP according to criteria in Sec. 550.53(g)(1) which
allows inmates to be removed from the program by the Drug Abuse Program
Coordinator because of disruptive behavior related to the program or
unsatisfactory progress in treatment, and requires at least one formal
warning before removal, unless there is documented lack of compliance
and the inmate's continued presence would present an immediate problem
for staff and other inmates.
Removing paragraph (g)(3) removes the automatic expulsion of
inmates committing the listed prohibited acts and allows for greater
possibility of continuance of the program for inmates with discipline
problems.
Sec. 550.55(b) Inmates not eligible for early release. We propose
to make two changes to Sec. 550.55(b). The first is to modify the
current language of (b)(4), which precludes inmates from consideration
for early release if they have a prior felony or misdemeanor conviction
for homicide, forcible rape, robbery, aggravated assault, arson,
kidnaping, or an offense that involves sexual abuse of minors. The
Bureau proposes to modify the language of (b)(4) to clarify that we
intend to limit consideration of ``prior felony or misdemeanor''
convictions to those which were imposed within the ten years prior to
the date of sentencing for the inmate's current commitment. By making
this change, the Bureau clarifies that it will not preclude from early
release eligibility those inmates whose prior felony or misdemeanor
convictions were imposed longer than ten years before the date of
sentencing for the inmate's current commitment.
Title 18 U.S.C. 3621(e) provides the Director of the Bureau of
Prisons the discretion to grant an early release of up to one year upon
the successful completion of a residential drug abuse treatment
program. In exercising the Director's statutory discretion, we
considered the crimes of homicide, rape, robbery, aggravated assault,
arson, and kidnaping. In the FBI's Uniform Crime Reporting (UCR)
Program, violent crime is composed of four offenses: Murder and
nonnegligent manslaughter, rape, robbery, and aggravated assault.
Violent crimes are defined in the UCR Program as those offenses which
involve force or threat of force. The Director exercised his
discretion, therefore, to include these categories of violent crimes
and also expanded the list to include arson and kidnaping, as they also
are crimes of an inherently violent nature and particular dangerousness
to the public.
The Director exercises discretion to deny early release eligibility
to inmates who have a prior felony or misdemeanor conviction for theses
offenses because commission of such offenses rationally reflects the
view that such inmates displayed readiness to endanger the public. The
UCR explained that ``because of the variances in punishment for the
same offenses in different state codes, no distinction between felony
and misdemeanor crimes was possible.''
The application of national standards to the numerous local, state,
tribal, and federal prior convictions promotes uniformity, but creates
unique issues since each separate entity will have its own criminal
statutory schemes in which offenses may be categorized as either
misdemeanors or felonies. Limiting the Bureau to an analysis of how an
offense is categorized in local, state, tribal, or federal criminal
codes, rather than to an analysis of the nature of the prior offense,
would effectively prevent the Director from exercising the discretion
authorized by 18 U.S.C. 3621(e). Furthermore, eliminating the analysis
of prior violent misdemeanor convictions would allow inmates to receive
the benefit of early release merely because of the manner in which the
prior convictions were categorized.
Additionally, 28 CFR 550.55(b)(6) provides that inmates who have
been convicted of an attempt, conspiracy, or other offense which
involved certain underlying offenses are also precluded from early
release eligibility. Many state statutes provide that ``attempt''
convictions are to be categorized as one degree lower than the
underlying offense (e.g., Alaska Statutes sec. 11.31.100(d), N.C. Gen
Stat. sec. 14-2.5, Tex. Penal Code sec. 15.01(d), and Wash. Rev. Code
sec. 9A.28.020(3)). Therefore, eliminating the analysis of prior
misdemeanor convictions may result in offenders convicted of attempting
to commit a precluding offense being found eligible for early release,
despite the provisions of 28 CFR 550.55(b)(6).
Further, based on a random sampling of inmates who participated in
RDAP but were precluded from RDAP early release eligibility, the Bureau
estimates that of the 856 inmates precluded in the year 2014 based only
on convictions for prior offense, at least half that number would have
been eligible for early release if the Bureau had not considered prior
offenses greater than 10 years old. The Fiscal Year 2015 estimated
annual marginal rate to incarcerate an inmate in the Bureau of Prisons
is $11,324 per inmate. Based on an estimate of 400 inmates released up
to a year early if this proposed rule change is made, that could equate
to a cost avoidance of over $4.5 million per year.
We also propose to narrow the language in Sec. 550.55(b)(6)
relating to early release eligibility. In Sec. 550.55(b), the Director
exercises his discretion to disallow particular categories of inmates
from eligibility for early release, including, in (b)(6), those who
were convicted of an attempt, conspiracy, or
[[Page 43369]]
other offense which involved an underlying offense listed in paragraph
(b)(4) and/or (b)(5) of Sec. 550.55.
We propose to narrow the language of Sec. 550.55(b)(6) to preclude
only those inmates whose prior conviction involved direct knowledge of
the underlying criminal activity and who either participated in or
directed the underlying criminal activity. The proposed change would
more precisely tailor the regulation to the congressional intent to
exclude from early release consideration only those inmates who have
been convicted of a violent offense. Furthermore, the changed language
would potentially expand early release benefits to more inmates.
Beginning in 1991, in coordination with the National Institute on
Drug Abuse, the Bureau conducted a 3-year outcome study of the RDAP.
Federal Bureau of Prisons (2000). TRIAD Drug Treatment Evaluation
Project Final Report of Three-Year Outcomes: Part I. (``TRIAD Study'').
The study evaluated the effect of treatment on both male and female
inmates (1,842 men and 473 women). This study demonstrates that the
Bureau's RDAP makes a positive difference in the lives of inmates and
improves public safety.
The TRIAD study showed that the RDAP program is effective in
reducing recidivism. Male participants were 16 percent less likely to
recidivate and 15 percent less likely to relapse than similarly
situated inmates who do not participate in residential drug abuse
treatment for up to 3 years after release. The analysis also found that
female inmates who participate in RDAP are 18 percent less likely to
recidivate than similarly situated female inmates who do not
participate in treatment.
The TRIAD study defined criminal recidivism was defined two ways:
(1) An arrest for a new offense or (2) an arrest for a new offense or
supervision revocation. Revocation was defined as occurring only when
the revocation was solely the result of a technical violation of one or
more conditions of supervision (e.g., detected drug use, failure to
report to probation officer). Drug use as a post-release outcome, for
the purposes of the study, referred to the first occurrence of drug or
alcohol use as reported by U.S. Probation officers (i.e., a positive
urinalysis (u/a), refusal to submit to a urinalysis, admission of drug
use to the probation officer, or a positive breathalyser test).
Offenders who completed the residential drug abuse treatment
program and had been released to the community for three years were
less likely to be re-arrested or to be detected for drug use than were
similar inmates who did not participate in the drug abuse treatment
program. Specifically, 44.3 percent of male inmates who completed the
program were likely to be re-arrested or revoked within three years
after release to supervision in the community, compared to 52.5 percent
of those inmates who did not receive such treatment. For women, 24.5
percent of those who completed the residential drug abuse treatment
program were arrested or revoked within three years after release,
compared to 29.7 percent of the untreated women.
With respect to drug use, 49.4 percent of men who completed
treatment were likely to use drugs within 3 years following release,
compared to 58.5 percent of those who did not receive treatment. Among
female inmates who completed treatment, 35.2 percent were likely to use
drugs within the three-year postrelease period in the community,
compared to 42.6 percent of those who did not receive such treatment.
Sec. 550.56 Community Transitional Drug Abuse Treatment Program
(TDAT).
In addition to changing ``Transitional Drug Abuse Treatment Program
(TDAT)'' to ``Community Treatment Services (CTS)'' throughout this
regulation as indicated earlier, we also propose to delete paragraph
(c) which appears to require that inmates successfully completing RDAP
and participating in transitional treatment programming must
participate in such programming for one hour per month. The provision
in the regulation is an error. It does not relate to Community
Treatment Services (CTS), but instead relates to RDAP. It is therefore
unnecessary to retain this language. The substance of this language
will be retained as implementing text in the relevant policy statement
as part of RDAP procedures.
Executive Orders 12866 and 13563
This proposed regulation has been drafted and reviewed in
accordance with Executive Order 12866, ``Regulatory Planning and
Review,'' section 1(b), Principles of Regulation, and Executive Order
13563, ``Improving Regulation and Regulatory Review.'' These executive
orders 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 equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility.
The Director, Bureau of Prisons has determined that this proposed
rule is a ``significant regulatory action'' under Executive Order
12866, section 3(f), and accordingly this proposed rule has been
reviewed by the Office of Management and Budget.
As context regarding the current impact of the RDAP (i.e., without
the changes proposed in this rule), in FY 2014, 18,102 inmates
participated in the residential drug abuse treatment program. Title 18
U.S.C. 3621(e)(2) allows the Bureau to grant a non-violent offender up
to one year off his/her term of imprisonment for successful completion
of the RDAP. In fiscal year 2014, 5,229 inmates received a reduction in
their term of imprisonment resulting in a cost avoidance of nearly $50
million based on this law (average reduction was 10.4 months and the
marginal cost avoidance was $10,994 annually). The changes made by this
proposed rule would increase the number of current inmates who benefit
from the RDAP program and would increase the number of inmates who may
be eligible for early release, thereby resulting in cost avoidance to
the Bureau in the future.
For instance, the change we propose to make to Sec. 550.55(b)(6),
regarding changing ``other offense'' to ``solicitation to commit,''
based on prior year data (Jan 2014 through Dec 2014), we estimate that
approximately 45 inmates would be made eligible for early release as a
result of the suggested change.
We will not require more resources in order to put more individuals
through RDAP. RDAP is a nine-month program. The program has a treatment
capacity large enough to accommodate about 8,400 participants at any
given time. Therefore, during a year, program capacity is filled twice,
which means that at least 16,800 participants can be accommodated every
year. It is not uncommon for more than 16,800 to participate. For
example, in FY 2014, approximately 18,000 inmates participated. This
number also reflects inmates who may drop out of the program and are
replaced with other inmates on the wait list.
Executive Order 13132
This proposed regulation would 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. Under Executive Order 13132, this
rulemaking does not have sufficient federalism implications
[[Page 43370]]
for which we would prepare 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. By
approving it, the Director certifies that it will not have a
significant economic impact upon a substantial number of small entities
because: This proposed rule is about 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 proposed rule will not cause State, local and tribal
governments, or the private sector, to spend $100,000,000 or more in
any one year, and it will not significantly or uniquely affect small
governments. We do not need to take action under the Unfunded Mandates
Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
proposed rule would 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 550
Prisoners.
Charles E. Samuels, Jr.,
Director, Bureau of Prisons.
Under the 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 propose to amend 28 CFR part 550 as follows:
PART 550--DRUG PROGRAMS
0
1. The authority citation for part 550 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624,
4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987), 5006-5024 (Repealed October
12, 1984 as to offenses committed after that date), 5039; 21 U.S.C.
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18
U.S.C. Chapter 223).
0
2. Revise Sec. 550.50 to read as follows:
Sec. 550.50 Purpose and scope.
The purpose of this subpart is to describe the Bureau's drug abuse
treatment programs for the inmate population, to include drug abuse
education, non-residential drug abuse treatment services, and
residential drug abuse treatment programs (RDAP). These services are
provided by Psychology Services department.
0
3. Amend Sec. 550.53 by revising paragraphs (a)(1), (a)(3), (f), and
(g) to read as follows:
Sec. 550.53 Residential Drug Abuse Treatment Program (RDAP).
(a) * * *
(1) Unit-based component. Inmates must complete a course of
activities provided by the Psychology Services Department in a
treatment unit set apart from the general prison population. This
component must last at least six months.
* * * * *
(3) Community Treatment Services (CTS). Inmates who have completed
the unit-based program and (when appropriate) the follow-up treatment
and transferred to a community-based program must complete CTS to have
successfully completed RDAP and receive incentives. The Warden, on the
basis of his or her discretion, may find an inmate ineligible for
participation in a community-based program; therefore, the inmate
cannot complete RDAP.
* * * * *
(f) Completing the unit-based component of RDAP. To complete the
unit-based component of RDAP, inmates must have satisfactory attendance
and participation in all RDAP activities.
(g) Expulsion from RDAP. (1) Inmates may be removed from the
program by the Drug Abuse Program Coordinator because of disruptive
behavior related to the program or unsatisfactory progress in
treatment.
(2) Ordinarily, inmates must be given at least one formal warning
before removal from RDAP. A formal warning is not necessary when the
documented lack of compliance with program standards is of such
magnitude that an inmate's continued presence would create an immediate
and ongoing problem for staff and other inmates.
(3) We may return an inmate who withdraws or is removed from RDAP
to his/her prior institution (if we had transferred the inmate
specifically to participate in RDAP).
* * * * *
0
4. Revise Sec. 550.55(b)(4) and (6) to read as follows:
Sec. 550.55 Eligibility for early release.
* * * * *
(b) * * *
(4) Inmates who have a prior felony or misdemeanor conviction
within the ten years prior to the date of sentencing for their current
commitment for:
(i) Homicide (including deaths caused by recklessness, but not
including deaths caused by negligence or justifiable homicide);
(ii) Forcible rape;
(iii) Robbery;
(iv) Aggravated assault;
(v) Arson;
(vi) Kidnaping; or
(vii) An offense that by its nature or conduct involves sexual
abuse offenses committed upon minors;
* * * * *
(6) Inmates who have been convicted of an attempt, conspiracy, or
solicitation to commit an underlying offense listed in paragraph (b)(4)
and/or (b)(5) of this section; or
* * * * *
0
5. Revise Sec. 550.56 to read as follows:
Sec. 550.56 Community Treatment Services (CTS).
(a) For inmates to successfully complete all components of RDAP,
they must participate in CTS. If inmates refuse or fail to complete
CTS, they fail RDAP and are disqualified for any additional incentives.
(b) Inmates with a documented drug use problem who did not choose
to participate in RDAP may be required to participate in CTS as a
condition of participation in a community-based program, with the
approval of the Supervisory Community Treatment Services Coordinator.
[FR Doc. 2015-17707 Filed 7-21-15; 8:45 am]
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