FSA Time Credits, 2705-2719 [2022-00918]

Agencies

• Department of Justice
• Bureau of Prisons

[Federal Register Volume 87, Number 12 (Wednesday, January 19, 2022)]
[Rules and Regulations]
[Pages 2705-2719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00918]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 523 and 541

[BOP-1176P]
RIN 1120-AB76


FSA Time Credits

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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

[[Page 2706]]

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

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

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

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

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

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

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

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

[[Page 2707]]

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

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

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

[[Page 2708]]

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

[[Page 2709]]

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

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

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

[[Page 2710]]

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

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

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

[[Page 2711]]

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

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

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

[[Page 2712]]

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

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

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

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

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

[[Page 2713]]

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

[[Page 2714]]

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

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

    Another commenter stated that

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

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

[[Page 2715]]

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

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

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

[[Page 2716]]

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

Regulatory Certifications

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

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

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

[[Page 2717]]

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

List of Subjects in 28 CFR Parts 523 and 541

    Prisoners.

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

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

Subchapter B--Inmate Admission, Classification, and Transfer

PART 523--COMPUTATION OF SENTENCE

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

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

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


Sec.  523.40   Purpose.

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


Sec.  523.41   Definitions.

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

[[Page 2718]]

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


Sec.  523.42   Earning First Step Act Time Credits.

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


Sec.  523.43   Loss of FSA Time Credits.

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


Sec.  523.44   Application of FSA Time Credits.

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

Subchapter C--Institutional Management

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

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

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

[[Page 2719]]

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

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


Sec.  541.3   Prohibited acts and available sanctions.

* * * * *
    (b) * * *

            Table 1--Prohibited Acts and Available Sanctions
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
     Available Sanctions for Greatest Severity Level Prohibited Acts
------------------------------------------------------------------------
 
                              * * * * * * *
B.2...............................  Forfeit up to 41 days of earned
                                     First Step Act (FSA) Time Credits
                                     (see 28 CFR part 523, subpart E)
                                     for each prohibited act committed.
 
                              * * * * * * *
------------------------------------------------------------------------
       Available Sanctions for High Severity Level Prohibited Acts
------------------------------------------------------------------------
 
                              * * * * * * *
B.2...............................  Forfeit up to 27 days of earned FSA
                                     Time Credits for each prohibited
                                     act committed.
 
                              * * * * * * *
------------------------------------------------------------------------
     Available Sanctions for Moderate Severity Level Prohibited Acts
------------------------------------------------------------------------
 
                              * * * * * * *
B.2...............................  Forfeit up to 14 days of earned FSA
                                     Time Credits for each prohibited
                                     act committed.
 
                              * * * * * * *
------------------------------------------------------------------------
       Available Sanctions for Low Severity Level Prohibited Acts
------------------------------------------------------------------------
 
                              * * * * * * *
B.2...............................  Forfeit up to 7 days of earned FSA
                                     Time Credits (only where the inmate
                                     is found to have committed a second
                                     violation of the same prohibited
                                     act within 6 months; forfeit up to
                                     14 days of FSA Time Credits (only
                                     where the inmate is found to have
                                     committed a third violation of the
                                     same prohibited act within 6
                                     months).
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

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


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

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

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