FSA Time Credits

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule would codify the Bureau of Prisons (Bureau) procedures regarding time credits as authorized by the First Step Act of 2018 (FSA), hereinafter referred to as “FSA Time Credits.” The FSA provides that eligible inmates may earn FSA Time Credits towards pre-release custody or early transfer to supervised release for successfully completing approved Evidence-Based Recidivism Reduction programs or Productive Activities that are assigned to the inmate based on the inmate's risk and needs assessment. Eligible inmates include those individuals who are sentenced under the U.S. Code and in the custody of the Bureau. However, as required by the FSA, an inmate cannot earn FSA Time Credits if he or she is serving a sentence for a disqualifying offense or has a disqualifying prior conviction. However, these inmates can still earn other benefits, as authorized by the Bureau, for successfully completing recidivism reduction programming.

DATES:

Electronic comments must be submitted, and written comments must be postmarked, no later than 11:59 p.m. on January 25, 2021.

ADDRESSES:

Please submit electronic comments through the regulations.gov website, or mail written comments to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT:

Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 353-8248.

SUPPLEMENTARY INFORMATION:

Posting of Public Comments

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment contains so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted www.regulations.gov.

Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

The Proposed Rule

This proposed rule would codify the Bureau of Prisons (Bureau) procedures regarding 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 completes an Evidence-Based Recidivism Reduction program or Productive Activity that is assigned to the inmate based on the inmate's risk and needs assessment may earn FSA Time Credits to be applied towards pre-release custody (i.e., transfer to a Residential Reentry Center (RRC) or home confinement for service of a portion of the inmate's sentence) or early transfer to supervised release (i.e., early satisfaction of the inmate's sentence) under 18 U.S.C. 3624(g). This proposed rule does not address the procedures for determining whether an individual inmate will have FSA Time Credits applied towards 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.

As required by the FSA in 18 U.S.C. 3632(d)(4)(D), an inmate cannot earn FSA Time Credits if he or she is serving a sentence for a disqualifying offense or has a disqualifying prior conviction as specified in 18 U.S.C. 3632(d)(4)(D). However, these inmates can still earn other benefits as authorized by the Bureau for successfully completing recidivism reduction programming.

The Bureau proposes to add a new subpart E to part 523 of Chapter V, entitled “FSA Time Credits,” which would contain regulations defining terms in more detail and describing how inmates may earn or forfeit FSA Time Credits. Section 523.40 would set forth the purpose of the subpart. The Bureau's proposed definitions of an Evidence-Based Recidivism Reduction program and Productive Activity in § 523.41 conform to the definitions provided by the FSA in 18 U.S.C. 3635(3) and (5) respectively.

The regulation next addresses successful completion, indicating that eligible inmates must successfully complete each Evidence-Based Recidivism Reduction program or Productive Activity that are assigned to the inmate based on the inmate's risk and needs assessment before they may earn FSA Time Credits. The requirements to successfully complete an Evidence-Based Recidivism Reduction program or Productive Activity are defined by the Bureau for each Evidence-Based Recidivism Reduction program or Productive Activity. The requirements will be based on the specific elements of each Evidence-Based Recidivism Reduction program or Productive Activity, and may vary based on the curricula, duration, or the specific needs or of either the Evidence-Based Recidivism Reduction program/Productive Activity or the inmate participating.

Eligible inmates are also described in this section: An “eligible inmate” is any inmate sentenced under the U.S. Code and in the custody of the Bureau who is not serving a term of imprisonment for a conviction specified in 18 U.S.C. 3632(d)(4)(D). An inmate who is in the custody of the Bureau, but is serving a term of imprisonment for a conviction under the law of one of the fifty (50) states, the District of Columbia, Guam, Puerto Rico, the U.S. Virgin Islands, the Commonwealth of the Mariana Islands, American Samoa, or any other territory or possession of the United States is not an “eligible inmate.” As the FSA also indicates, an inmate who is eligible to earn FSA Time Credits and not subject to a final order of removal under immigration laws as defined in 8 U.S.C. 1101(a)(17) may have FSA Time Credits applied towards pre-release custody or early transfer to supervised release under 18 U.S.C. 3624(g).

The proposed regulations also explain in § 523.42 that eligible inmates must successfully complete each Evidence-Based Recidivism Reduction program or Productive Activity that is assigned to the inmate based on the inmate's risk and needs assessment before they may earn FSA Time Credits. Consistent with the FSA, FSA Time Credits will not be given for anything less than successful completion. After successful completion of an Evidence-Based Recidivism Reduction program or Productive Activity, an eligible inmate may be awarded ten days of FSA Time Credits for every thirty “days” of participation. A “day” is a unit defined as one eight-hour-period of a successfully completed Evidence-Based Recidivism Reduction program or Productive Activity. The Bureau derives its proposal for earning FSA Time Credits from 18 U.S.C. 3632(d)(4)(A)(i), which indicates that inmates “shall earn 10 days of Time Credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.”

As authorized by the FSA in 18 U.S.C. 3632(d)(4)(A)(ii), inmates may earn an additional five days of FSA Time Credits for every thirty “days” (with a “day” defined as one eight-hour-period) of participation in a successfully completed Evidence-Based Recidivism Reduction program or Productive Activity that is assigned to the inmate based on the inmate's risk and needs assessment if the inmate is at a minimum or low risk for recidivating and has had no increased risk of recidivism over the most recent two consecutive assessments conducted by the Bureau of Prisons.

FSA Time Credits may only be earned for successful completion of an Evidence-Based Recidivism Reduction program and Productive Activity assigned to the inmate based on the inmate's risk and needs assessment, and only for those successfully completed on or after January 15, 2020. Additionally, an inmate may only earn FSA Time Credits after the date that inmate's term of imprisonment commences, which is defined as when the inmate arrives or voluntarily surrenders at the facility where the sentence will be served. Further, 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.

FSA Time Credits may be lost through inmate discipline procedures described in 28 CFR part 541 if an inmate violates prison rules or requirements/rules of an Evidence-Based Recidivism Reduction program or Productive Activity. 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). If this occurs, inmates may seek review of the loss of earned FSA Time Credits through the Bureau's Administrative Remedy Program (28 CFR part 542).

Also, inmates may have part or all of the lost FSA Time Credits restored to them, to be determined on a case-by-case basis, after clear conduct for at least four consecutive risk assessments. In the case of a loss of FSA Time Credits due to a violation of the requirements and/or rules of an Evidence-Based Recidivism Reduction program or Productive Activity, an inmate may have FSA Time Credits restored if the inmate successfully completes an Evidence-Based Recidivism Reduction program or Productive Activity assigned to the inmate based on the inmate's risk and needs assessment after the date of the rule or program violation, again, to be determined on a case-by-case basis.

The Bureau also proposes to make conforming amendments in 28 CFR part 541 to regulations on inmate discipline. As part of the FSA Time Credits proposal, the Bureau proposes to add in § 541.3, Table 1 (Prohibited Acts and Available Sanctions), appropriate sanctions to allow for forfeiture of FSA Time Credits in escalating amounts depending on the severity level of the prohibited act committed. The FSA Time Credit forfeiture sanctions mirror the current forfeiture sanctions in place for loss of Good Conduct Time. If an inmate commits a second violation of the same Low Severity prohibited act code within a six months, that inmate may receive a sanction of forfeiture of up to 7 days of FSA Time Credits, but a third violation of the same prohibited act within six months period may result in a sanction of forfeiture of up to 14 days of FSA Time Credits. For commission of a prohibited act in the Moderate category, a sanction up to 30 days of FSA Time Credits credit may be applied. Commission of a High Severity act may result in forfeiture of up to 60 days of FSA Time Credits, and commission of a Greatest Severity act may result in forfeiture of up to 120 days of FSA Time Credits.

All sanctions involving loss of FSA Time Credits may only be imposed by in the discretion of a Disciplinary Hearing Officer (DHO) after the process described in 28 CFR part 541, and may also be appealed through the Bureau's Administrative Remedy Process described in 28 CFR part 542. The procedures in 28 CFR parts 541 and 542 allow for inmate discipline and an appeals process that are both well-established and consistent with current Bureau operations. Bureau DHOs will use their considerable correctional experience and training, as they currently do, and will only, after careful consideration of several factors, including the nature and seriousness of the violation in connection with the FSA Time Credit Program, limit appropriate sanctions to befit the nature of the prohibited act committed.

Regulatory Analyses

Executive Orders 12866, 13563, and 13771

This proposed rule falls within a category of actions that the Office of Management and Budget (OMB) has determined constitutes a “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was reviewed by OMB.

The economic impact of this proposed rule is limited to a specific subset of inmates who are eligible to both earn and apply FSA Time Credits towards 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 assessment system, Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN), which includes both static and dynamic elements. For example on August 27, 2020, 131,386 inmates had been assessed under PATTERN and received a PATTERN score were in Bureau custody. The PATTERN scores for the entire group of 131,386 were: 50,060 classifed as high; 25,043 classified as medium; 38,084 classified as low; and 18,199 classified as minium. 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 represent a snapshot of those inmates in Bureau custody as of August 27, 2020. The Bureau anticipates that this data will change continually, as inmates in custody earn reductions in PATTERN 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 proposed 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 Evidence-Based Recidivism Reduction program or Productive Activity 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/evidence_based_recidivism_reduction_programs.pdf. These programs are available to all inmates regardless of an inmate's elibility to earn FSA Time Credits. At present, the Bureau has existing funding that provides for each of the Evidence-Based Recidivism Reduction programs and Productive Activities listed, so the Bureau will not experience current additional programming costs as a reslt of the proposed rule.

The proposed rule may also result in movement of eligible inmates who earn FSA Time Credits from Bureau facilities to prerelease custody in the community (including Residential Reentry Centers (RRCs) and/or 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 and/or supervision in prerelease custody.

The proposed rule may also result in the early transfer of inmate from custody to supervised release, functionally shortening their sentences. In such cases, the Bureau would benefit from the avoidance of costs which would otherwise have been incurred to confine the affected inmates for that amount of time.

Notably, this proposed rule is limited to the processes for earning, awarding, and losing FSA Time Credits, and does not address the mechanisms through which those FSA Time Credits may be applied towards additional time in prerelease custody or early transfer to supervised release. Future decisions on that issue will significantly impact the relative amount of cost increases and cost savings to the Bureau. At present, therefore, specific costs or savings for these future actions cannot be calculated. Further, any increased costs or savings resulting from application of this proposed rule will only be realized at the end of an eligible inmate's sentence, as they are transferred to prerelease custody and/or released earlier to commence their term of supervised release. Therefore, the increased costs or cost savings realized from this proposed 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. Any economic impacts will occur gradually over time as the number of impacted inmates, and the quantity of time credits they accrue, increase.

For these reasons, it is not possible to forecast the actual economic effect which may occur as a result of this proposed 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.

Executive Order 13132

This proposed rule will not have substantial direct effect on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this proposed 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 proposed rule and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This proposed 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 proposed 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 proposed rule is a not major rule as defined by the Congressional Review Act, 5 U.S.C. 804. This proposed rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

List of Subjects

28 CFR Part 523

• Prisoners

28 CFR Part 541

• Administrative practice and procedure
• Prisoners

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 propose to amend 28 CFR parts 523 and 541 as follows:

PART 523—COMPUTATION OF SENTENCE

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.

2. Add Subpart E to part 523, to read as follows:

Subpart E—First Step Act Time Credits

PART 541—INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

2. 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 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.

3. In § 541.3, amend Table 1 by adding the entry B.2 under the headings “Available Sanctions for Greatest Severity Level Prohibited Acts”, “Available Sanctions for High Severity Level Prohibited Acts”, “Available Sanctions for Moderate Severity Level Prohibited Acts”, and “Available Sanctions for Low Severity Level Prohibited Acts” to read as follows:

4. Amend § 541.7, by revising paragraph (f) to read as follows: