Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Proposed Rules 58197 

compliance schedule? For example, should 

the Commission have considered the extent 

to which its documentation and margin 

requirements apply to entities and 

transactions located outside the United 

States? Also, should the Commission have 

considered the extent to which such 

requirements apply to transactions between 

affiliates (whether domestic or cross-border)? 

If applicable, how should the Commission 

adjust the proposed compliance schedule to 

account for such issues? 

Finally, I want to be clear that I support 

completing the final Dodd-Frank rulemakings 

in a reasonable time frame. I believe that the 

timely implementation of such rulemakings 

is important. Knowing when and how the 

markets are required to do what is vital to the 

success of implementing the new market 

structure required under the Dodd-Frank Act. 

When billions of dollars are at stake, you 

simply do not rely on guesses and estimates 

based on vague conditions. 

[FR Doc. 2011–24124 Filed 9–19–11; 8:45 am] 

BILLING CODE 6351–01–P 

DEPARTMENT OF JUSTICE 

Bureau of Prisons 

28 CFR Part 570 

[BOP Docket No. 1151] 

RIN 1120–AB61 

Pre-Release Community Confinement 

AGENCY: Bureau of Prisons, Justice. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Bureau 

of Prisons (Bureau) responds to recent 

litigation surrounding the pre-release 

community confinement regulation 

which it published on October 21, 2008 

by publishing a proposed rule on this 

subject. 

DATES: Comments are due by November 

21, 2011. 

ADDRESSES: Submit comments to the 

Rules Unit, Office of General Counsel, 

Bureau of Prisons, 320 First Street, NW., 

Washington, DC 20534. You may view 

an electronic version of this rule at 

http://www.regulations.gov. You may 

also comment via the Internet to the 

Bureau at BOPRULES@BOP.GOV or by 

using the http://www.regulations.gov 

comment form for this regulation. When 

submitting comments electronically, 

you must include the BOP Docket No. 

in the subject box. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Qureshi, Office of General 

Counsel, Bureau of Prisons, phone (202) 

307–2105. 

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments 

Please note that all comments 

received are considered part of the 

public record and are available for 

public inspection online at http:// 

www.regulations.gov. Such information 

includes personal identifying 

information (such as your name, 

address, etc.) voluntarily submitted by 

the commenter. 

If you want to submit personal 

identifying information (such as your 

name, address, etc.) as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also locate 

all the personal identifying information 

you do not want posted online in the 

first paragraph of your comment and 

identify what information you want 

redacted. 

If you want to submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment 

contains so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on http:// 

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 

In this document, the Bureau of 

Prisons (Bureau) responds to recent 

litigation surrounding the pre-release 

community confinement regulation 

which it published on October 21, 2008 

(73 FR 62443) (2008 regulations) by 

publishing a proposed rule on this 

subject. 

The interim rule published in 2008 

revised the Bureau’s regulations on prerelease community confinement in 28 

CFR part 570, subpart B, to conform 

with the requirements of the Second 

Chance Act of 2007, approved April 9th, 

2008 (Pub. L. 110–199; 122 Stat. 657) 

(‘‘Second Chance Act’’). 

In an opinion filed on June 16, 2010, 

the District Court for the District of 

Oregon upheld Bureau policies issued 

following the Second Chance Act, 

finding that they are ‘‘internal agency 

guidelines which do not trigger the 

procedural requirements of 5 U.S.C. 

§ 553,’’ but invalidated the 2008 interim 

rule on the grounds that the Bureau did 

not ‘‘establish good cause to forego 

advance notice and comment’’ under 

the Administrative Procedure Act (5 

U.S.C. 552, et seq.). Sacora v. Thomas, 

No. CV 08–578–MA (D. Or. June 16, 

2010). The court enjoined the BOP 

‘‘from considering inmates for prerelease RRC [Residential Re-entry 

Centers] placement pursuant to 28 CFR 

570.20–22 until such time as regulations 

are promulgated in accordance with 5 

U.S.C. 553(b).’’ We now issue this 

proposed rule in order to comply with 

the court’s determination. The proposed 

rule is identical to the 2008 interim rule, 

and we therefore reprint the rationale 

for the interim rule below as the 

rationale for this proposed rule. 

Prior to October 21, 2008, the 

community confinement regulations 

implemented the Bureau’s categorical 

exercise of discretion for designating 

inmates to community confinement. 

The regulations stated that the Bureau 

would designate inmates to community 

confinement only as a condition of prerelease custody and programming, 

during the last ten percent of the prison 

sentence being served, for a period not 

exceeding six months, unless specific 

Bureau programs allow greater periods 

of community confinement. 

To conform these regulations to the 

language of the Second Chance Act, we 

made the following revisions: 

Section 570.20 Purpose 

In this regulation, we describe the 

Bureau’s procedures for designating 

inmates to pre-release community 

confinement or home detention. We also 

provide a new definition of the term 

‘‘community confinement.’’ Section 

231(f) of the Second Chance Act 

amended 18 U.S.C. 3621 by adding a 

new subsection (g). New 18 U.S.C. 

3621(g)(2) defines the term ‘‘community 

confinement’’ for purposes of that 

subsection by adopting the meaning 

‘‘given that term in the application notes 

under section 5F1.1 of the Federal 

Sentencing Guidelines Manual’’ in 

effect on the date of enactment of the 

Act. On April 9, 2008, the application 

notes to United States Sentencing 

Guideline (USSG) § 5F1.1 read in 

pertinent part as follows: 

‘‘Community confinement’’ means 

residence in a community treatment center, 

halfway house, restitution center, mental 

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58198 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Proposed Rules 

health facility, alcohol or drug rehabilitation 

center, or other community facility; and 

participation in gainful employment, 

employment search efforts, community 

service, vocational training, treatment, 

educational programs, or similar facilityapproved programs during non-residential 

hours. 

Although new subsection 18 U.S.C. 

3621(g) relates on its face only to 

‘‘continued access to medical care,’’ we 

adopt the definition of community 

confinement given in this provision for 

the purposes of subpart B as amended. 

The Second Chance Act itself variously 

uses the terms ‘‘community 

confinement,’’ ‘‘community corrections 

agencies,’’ ‘‘community corrections 

facilities,’’ and ‘‘community 

confinement facilities,’’ but it does so in 

contexts that indicate that these terms 

are meant to refer to the concept of 

community confinement generally. We 

therefore adopt the definition in 18 

U.S.C. 3621(g) for clarity and 

consistency, and to maintain uniformity 

in application of the Second Chance Act 

provisions, we adopt this definition of 

‘‘community confinement’’ as 

applicable in the context of these 

regulations. For clarity, we also add a 

parenthetical that explains that the 

Bureau includes residential re-entry 

centers in the definition of ‘‘community 

confinement.’’ 

In this section, we also add a 

definition of ‘‘home detention.’’ Section 

231(g)(5)(B) of the Second Chance Act 

provides that ‘‘[t]he term ‘home 

detention’ has the same meaning given 

the term in the Federal Sentencing 

Guidelines as of the date of the 

enactment of this Act * * *.’’ Once 

more, although this reference to the 

Federal Sentencing Guidelines is 

articulated in a different context, we 

deem it prudent to model our definition 

on that given by the Federal Sentencing 

Guidelines, as suggested by the Second 

Chance Act, for clarity and consistency 

in application. 

In this section, therefore, we include 

a definition of ‘‘home detention’’ which 

is derived from USSG 5F1.2. 

Specifically, we define ‘‘home 

detention’’ as a program of confinement 

and supervision that restricts the 

defendant to his or her place of 

residence continuously, except for 

authorized absences, enforced by 

appropriate means of surveillance by 

the probation office or other monitoring 

authority. We add the phrase ‘‘or other 

monitoring authority’’ to the definition 

given by USSG 5F1.2 to allow for the 

possibility that the function of 

monitoring may be accomplished by 

other federal government agencies, 

employees, or contractors. 

Section 570.21 Time-frames 

Section 251(a) of the Second Chance 

Act amends 18 U.S.C. 3624(c) to require 

that the Director must, ‘‘to the extent 

practicable, ensure that a prisoner 

serving a term of imprisonment spends 

a portion of the final months of that 

term (not to exceed 12 months), under 

conditions that will afford that prisoner 

a reasonable opportunity to adjust to 

and prepare for the reentry of that 

prisoner into the community.’’ Further, 

section 3624(c) is amended to state that 

‘‘[t]he authority under this subsection 

may be used to place a prisoner in home 

confinement for the shorter of 10 

percent of the term of imprisonment of 

that prisoner or 6 months.’’ 

In this section, we therefore make the 

following changes to conform to the 

specific language in section 251(a) of the 

Second Chance Act: Paragraph (a) of the 

revised § 570.21 states that inmates may 

be designated to community 

confinement as a condition of prerelease custody and programming 

during the final months of the inmate’s 

term of imprisonment, not to exceed 

twelve months; and paragraph (b) of the 

revised § 570.21 states that inmates may 

be designated to home detention as a 

condition of pre-release custody and 

programming during the final months of 

the inmate’s term of imprisonment, not 

to exceed the shorter of ten percent of 

the term of the inmate’s imprisonment 

or six months. 

Section 570.22 Designation 

In this section, we inform inmates 

that they will be considered for prerelease community confinement in a 

manner consistent with 18 U.S.C. 

3621(b), determined on an individual 

basis, and of duration sufficient to 

optimize the likelihood of successful 

reintegration into the community. This 

section reflects the requirements of the 

Second Chance Act regarding the 

promulgation of these regulations. 

Section 251(a)(6) of the Second Chance 

Act requires the Bureau to implement 

regulations that ensure that placements 

in community confinement as a 

condition of pre-release custody are: 

• Conducted in a manner consistent 

with 18 U.S.C. 3621(b); 

• Determined on an individual basis; 

and 

• Long enough ‘‘to provide the 

greatest likelihood of successful 

reintegration into the community.’’ 

Section 570.22 reflects the three factors 

listed above. 

With regard to the requirement that 

determinations regarding pre-release 

community confinement are ‘‘conducted 

in a manner consistent with 18 U.S.C. 

3621(b),’’ the Bureau will ensure that 

the following factors listed in section 

3621(b) will be considered in making 

such determinations: 

• The resources of the facility 

contemplated; 

• The nature and circumstances of 

the offense; 

• The history and characteristics of 

the prisoner; 

• Any statement by the sentencing 

court concerning the purpose for which 

the sentence was imposed or 

recommending a specific type of 

institution; and 

• Any pertinent policy statements 

issued by the United States Sentencing 

Commission. 

Executive Order 12866 

This rule falls within a category of 

actions that the Office of Management 

and Budget (OMB) has determined to 

constitute a ‘‘significant regulatory 

action’’ under section 3(f) of Executive 

Order 12866 and, accordingly, it was 

reviewed by OMB. 

The Bureau has assessed the costs and 

benefits of this rule as required by 

Executive Order 12866 Section 1(b)(6) 

and has made a reasoned determination 

that the benefits of this rule justify its 

costs. This rule will have the benefit of 

eliminating confusion in the courts that 

has been caused by the changes in the 

Bureau’s statutory interpretation, while 

allowing us to continue to operate in 

compliance with the revised statute. 

There will be no new costs associated 

with this rulemaking. 

Executive Order 13132 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, under 

Executive Order 13132, we determine 

that this rule does not have sufficient 

Federalism implications to warrant the 

preparation of a Federalism Assessment. 

Regulatory Flexibility Act 

The Director of the Bureau of Prisons, 

under the Regulatory Flexibility Act (5 

U.S.C. 605(b)), reviewed this regulation 

and by approving it certifies that it will 

not have a significant economic impact 

upon a substantial number of small 

entities for the following reasons: This 

rule pertains to the correctional 

management of offenders committed to 

the custody of the Attorney General or 

the Director of the Bureau of Prisons, 

and its economic impact is limited to 

the Bureau’s appropriated funds. 

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Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Proposed Rules 58199 

Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by § 804 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996. This rule will not result in an 

annual effect on the economy of 

$100,000,000 or more; a major increase 

in costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

List of Subjects in 28 CFR Part 570 

Prisoners. 

Thomas R. Kane, 

Acting Director, 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, we propose 

to revise 28 CFR part 570 as set forth 

below. 

Subchapter D—Community Programs and 

Release 

PART 570—COMMUNITY PROGRAMS 

1. Revise the authority citation for 28 

CFR part 570 to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 751, 

3621, 3622, 3624, 4001, 4042, 4081, 4082 

(Repealed in part as to offenses committed on 

or after November 1, 1987), 4161–4166, 

5006–5024 (Repealed October 12, 1984, as to 

offenses committed after that date), 5039; 28 

U.S.C. 509, 510. 

2. In part 570, subpart B is revised to 

read as follows: 

Subpart B—Pre-Release Community 

Confinement 

Sec. 

570.20 Purpose. 

570.21 Time-frames. 

570.22 Designation. 

§ 570.20 Purpose. 

The purpose of this subpart is to 

provide the procedures of the Bureau of 

Prisons (Bureau) for designating inmates 

to pre-release community confinement 

or home detention. 

(a) Community confinement is 

defined as residence in a community 

treatment center, halfway house, 

restitution center, mental health facility, 

alcohol or drug rehabilitation center, or 

other community correctional facility 

(including residential re-entry centers); 

and participation in gainful 

employment, employment search 

efforts, community service, vocational 

training, treatment, educational 

programs, or similar facility-approved 

programs during non-residential hours. 

(b) Home detention is defined as a 

program of confinement and 

supervision that restricts the defendant 

to his place of residence continuously, 

except for authorized absences, enforced 

by appropriate means of surveillance by 

the probation office or other monitoring 

authority. 

§ 570.21 Time-frames. 

(a) Community confinement. Inmates 

may be designated to community 

confinement as a condition of prerelease custody and programming 

during the final months of the inmate’s 

term of imprisonment, not to exceed 

twelve months. 

(b) Home detention. Inmates may be 

designated to home detention as a 

condition of pre-release custody and 

programming during the final months of 

the inmate’s term of imprisonment, not 

to exceed the shorter of ten percent of 

the inmate’s term of imprisonment or 

six months. 

(c) Exceeding time-frames. These 

time-frames may be exceeded when 

separate statutory authority allows 

greater periods of community 

confinement as a condition of prerelease custody. 

§ 570.22 Designation. 

Inmates will be considered for prerelease community confinement in a 

manner consistent with 18 U.S.C. 

Section 3621(b), determined on an 

individual basis, and of sufficient 

duration to provide the greatest 

likelihood of successful reintegration 

into the community, within the timeframes set forth in this part. 

[FR Doc. 2011–23684 Filed 9–19–11; 8:45 am] 

BILLING CODE 4410–05–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 199 

[Docket ID: DOD–2011–HA–0038] 

RIN 0720–AB50 

TRICARE; Smoking Cessation 

Program Under TRICARE 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule 

implements Section 713 of the Duncan 

Hunter National Defense Authorization 

Act (NDAA) for Fiscal Year 2009 (FY 

2009), Public Law 110–417. Section 713 

states the Secretary shall establish a 

smoking cessation program under the 

TRICARE program. The smoking 

cessation program under TRICARE 

shall, at a minimum, include the 

following: the availability, at no cost to 

the beneficiary, of pharmaceuticals used 

for smoking cessation, with the 

limitation on the availability of such 

pharmaceuticals to the mail-order 

pharmacy program under the TRICARE 

program; smoking cessation counseling; 

access to a toll-free quit line 24 hours a 

day, 7 days a week; and access to print 

and Internet web-based tobacco 

cessation material. Per the statute, 

Medicare-eligible beneficiaries are 

excluded from the TRICARE smoking 

cessation program. 

DATES: Written comments received at 

the address indicated below by 

November 21, 2011 will be accepted. 

ADDRESSES: You may submit comments, 

identified by docket number or 

Regulatory Information Number (RIN) 

and title, by any of the following 

methods: 

Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Mail: Federal Docket Management 

System Office, 4800 Mark Center Drive, 

2nd Floor, East Tower, Suite 02G09, 

Alexandria, VA 22350–3100. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this Federal 

Register document. The general policy 

for comments and other submissions 

from members of the public is to make 

these submissions available for public 

viewing on the Internet at http:// 

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: 

Barbara (Bobbie) Matthews, Medical 

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