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[Federal Register: January 11, 2011 (Volume 76, Number 7)]
[Rules and Regulations]               
[Page 1516-1519]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja11-6]                         

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 570

[BOP Docket No. 1144-F]
RIN 1120-AB44

 
Inmate Furloughs

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises its 
federal regulations on the inmate furlough program primarily to more 
clearly provide for and define transfer furloughs. Also, under this 
rule, the Bureau is expanding the authority of its Wardens to consider 
all inmates potentially eligible for non-transfer furloughs, as opposed 
to the current rule, which limits consideration to inmates with 
community custody status.

DATES: This rule is effective on February 10, 2011.

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

SUPPLEMENTARY INFORMATION: The Bureau revises its federal regulations 
on the inmate furlough program primarily to more clearly provide for 
and define transfer furloughs. Through this change, we also seek to 
reorganize and clarify the rules, while eliminating language that 
constitutes agency guidance to staff. Any such guidance language will 
be retained in the relevant Bureau policy. Also, under this rule, the 
Bureau is expanding the authority of its Wardens to consider all 
inmates potentially eligible for non-transfer furloughs, as opposed to 
the current rule, which limits consideration to inmates with community 
custody status.
    A proposed rule on this subject was published on December 6, 2006 
(71 FR 70696). We received three comments, which we respond to below.

Payment for Urinalysis, Breathalyzer, and Other Comparable Tests Upon 
Return From Furlough

    Section 570.38(b)(4) of the proposed rule stated that a furlough 
will only be approved if an inmate agrees to certain conditions, 
including the condition that the inmate may ``be thoroughly searched 
and given a urinalysis, breathalyzer, and other comparable test, during 
the furlough or upon return to the institution, and must prepay the 
cost of such test(s) if the inmate or family members are paying the 
other costs of the furlough.'' Further, this regulation provides that 
the inmate ``must pre-authorize all testing fee(s) to be withdrawn 
directly from his/her inmate deposit fund account.''
    One commenter questioned the payment process described in Sec.  
570.38. The commenter suggested that the inmate should pay for all 
potential testing before he/she be ``allowed to leave.'' This is not 
practical. Depending on Bureau resources, the inmate's particular 
situation, and the particular circumstances surrounding the furlough, 
it is possible that the inmate will not undergo all of the available 
testing upon the inmate's return from furlough. It is therefore 
unnecessary and impractical to require an inmate to pre-pay the costs 
of tests that he/she may not be required to undergo.
    The commenter then suggested that ``charging an inmate that is on 
an emergency non-transferral furlough is not reasonable before they be 
allowed to leave. Postponing their payment until they return seems to 
be more reasonable.'' The Bureau agrees with this statement, which is 
why the regulation requires not that inmates pre-pay, but only that the 
inmate sign a form pre-authorizing payment for testing that will be 
conducted upon the inmate's return.
    For clarity, we have modified that part of the regulation to state 
that the inmate ``must pre-authorize the cost of such test(s) if the 
inmate or family members are paying the other costs of the furlough.''

Conditions Under Which a Furlough May Be Granted

    One commenter stated that the rule ``does not make clear that 
inmates in Low, Medium, or High security institutions are categorically 
ineligible for emergency or other non-transfer furloughs.''
    However, according to the regulation as proposed, ``inmates in Low, 
Medium, or High security institutions'' are not ``categorically 
ineligible for emergency or other non-transfer furloughs,'' but instead 
will be considered on a case-by-case basis, in accordance with these 
regulations and in the Warden's discretion.
    Sec.  570.36 specifies the conditions under which a non-transfer 
furlough may be granted. This section contains a chart which clarifies 
the eligibility requirements for non-transfer furloughs and describes 
the types of non-transfer furloughs an inmate may be eligible for, 
based on the inmate's length of confinement or time remaining on the 
inmate's sentence. The chart has been revised in the final rule for 
greater clarity and accuracy. This section also describes circumstances 
under which Wardens will ordinarily deny non-transfer furloughs.
    Under this rule, the Bureau is expanding the authority of its 
Wardens to consider all inmates potentially eligible for non-transfer 
furloughs, as opposed to the current rule, which limits consideration 
to inmates with community custody status. Community custody, the lowest 
custody level assigned to an inmate, affords the lowest level of 
security and staff supervision. The Bureau believes this change is 
justified by the potential prisoner re-entry and rehabilitative 
benefits to be afforded by a non-transfer furlough. Further, any 
resulting public safety concerns are adequately addressed by the 
limitations contained within Sec. Sec.  570.35(b) and 570.36.
    Further, Sec.  570.31 describes inmate eligibility for furloughs, 
and states that sentenced inmates housed in Bureau facilities, pretrial 
inmates housed in Bureau facilities, and sentenced inmates housed in 
Bureau facilities and classified as central inmate monitoring cases may 
be eligible for furloughs.

[[Page 1517]]

Inmates who are not eligible for furloughs through the Bureau include 
sentenced inmates housed in contract facilities and inmates who are 
U.S. Marshals prisoners housed in contract facilities.
    It should be noted that revised Sec.  570.35(a) states that inmates 
transferring to administrative, low, medium, or high security 
facilities are generally not eligible for participation in the Bureau's 
transfer furlough program. Inmates transferring to facilities with 
these security designations are considered to pose a potential risk to 
the community if granted a transfer furlough. An inmate's security 
level is based on relevant factual information, such as the inmate's 
current offense, sentence, criminal history, and institutional behavior 
that requires additional security measures. Because of the potential 
risk to public safety, inmates transferring to administrative, low, 
medium, or high security facilities are not appropriate for 
participation in the Bureau's transfer furlough program.

Guidance to Staff Is Needed

    The third commenter recommended that ``further guidance be given to 
the Warden or person making the decision so that there will be more 
consistency in the granting of furloughs.''
    Further guidance will be given to all staff regarding furloughs in 
the corresponding Bureau policy on furloughs, which is a guidance 
document for staff. The Bureau intends for the corresponding policy 
guidance to promote consistency in the granting of furloughs.
    For the aforementioned reasons, the Bureau finalizes, with minor 
changes, the proposed rule published on December 6, 2006 (71 FR 70696).

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not 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 provide a more accurate description of the inmate 
furlough program. There will be no new costs associated with this 
rulemaking.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, under Executive Order 13132, 
we determine that this rule does not have sufficient Federalism 
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by 
approving it certifies that it will not have a significant economic 
impact upon a substantial number of small entities for the following 
reasons: This rule pertains to the correctional management of offenders 
committed to the custody of the Attorney General or the Director of the 
Bureau of Prisons, and its economic impact is limited to the Bureau's 
appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

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

List of Subjects in 28 CFR Part 570

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.
    Accordingly, 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 part 570 as 
set forth below.

SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE

PART 570--COMMUNITY PROGRAMS

0
1. The authority citation for 28 CFR part 570 continues to read as 
follows:

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

0
2. Revise subpart C to read as follows:

Subpart C--Furloughs

Sec.
570.30 Purpose.
570.31 Inmate eligibility for furloughs.
570.32 Types of furloughs.
570.33 Justification for furlough.
570.34 Expenses of furlough.
570.35 Transfer furlough eligibility requirements.
570.36 Non-transfer furlough eligibility requirements.
570.37 Procedures to apply for a furlough.
570.38 Conditions of Furlough.

Sec.  570.30  Purpose.

    The purpose of this subpart is to describe the procedures governing 
the furlough program of the Federal Bureau of Prisons (Bureau), which 
is authorized by 18 U.S.C. 3622. Under the furlough program, the Bureau 
allows inmates who meet certain requirements to be temporarily released 
from custody under carefully prescribed conditions.

Sec.  570.31  Inmate eligibility for furloughs.

    (a) Eligible inmates. The following types of inmates may be 
eligible for furloughs:
    (1) Sentenced inmates housed in Bureau facilities.
    (2) Pretrial inmates housed in Bureau facilities (provided that 
they comply with the requirements of 28 CFR part 551, Subpart J).
    (3) Sentenced inmates housed in Bureau facilities and classified as 
central inmate monitoring cases (provided that they comply with the 
requirements of 28 CFR part 524, Subpart F).
    (b) Ineligible inmates. The following types of inmates are not 
eligible for furloughs:
    (1) Sentenced inmates housed in contract facilities are not 
eligible to participate in the Bureau's furlough program under these 
rules, but may apply for furloughs as specified in that facility's 
written agreement with the Bureau.
    (2) Inmates who are U.S. Marshals prisoners housed in contract 
facilities are not eligible to participate, but must

[[Page 1518]]

direct any furlough requests to the U.S. Marshals.

Sec.  570.32  Types of furloughs.

    A furlough is an authorized absence from an institution by an 
inmate who is not under escort of a staff member, U.S. Marshal, or 
state or federal agents. The two types of furloughs are:
    (a) Transfer furlough--A furlough for the purpose of transferring 
an inmate from one Bureau facility to another, a non-federal facility, 
or community confinement (including home confinement) as noted below at 
Sec.  570.33(a).
    (b) Non-transfer furlough--A furlough for any purpose other than a 
transfer furlough, and which may be defined based on its nature, as 
either emergency or routine, as follows:
    (1) Emergency furlough--A furlough allowing an inmate to address a 
family crisis or other urgent situation as noted below at Sec.  
570.33(b).
    (2) Routine furlough--A furlough for any of the reasons noted below 
at Sec.  570.33 (a) and (c) through (j).
    (c) Duration and distance of non-transfer furlough--
    (1) Day furlough--A furlough within the geographic limits of the 
commuting area of the institution, which lasts 16 hours or less and 
ends before midnight.
    (2) Overnight furlough--A furlough which falls outside the criteria 
of a day furlough.

Sec.  570.33  Justification for furlough.

    The Warden or designee may authorize a furlough, for 30 calendar 
days or less, for an inmate to:
    (a) Transfer directly to another Bureau institution, a non-federal 
facility, or community confinement;
    (b) Be present during a crisis in the immediate family, or in other 
urgent situations;
    (c) Participate in the development of release plans;
    (d) Establish or reestablish family and community ties;
    (e) Participate in selected educational, social, civic, and 
religious activities which will facilitate release transition;
    (f) Appear in court in connection with a civil action;
    (g) Comply with an official request to appear before a grand jury, 
or to comply with a request from a legislative body, or regulatory or 
licensing agency;
    (h) Appear in or prepare for a criminal court proceeding, but only 
when the use of a furlough is requested or recommended by the 
applicable court or prosecuting attorney;
    (i) Participate in special training courses or in institution work 
assignments, including Federal Prison Industries (FPI) work 
assignments, when daily commuting from the institution is not feasible; 
or
    (j) Receive necessary medical, surgical, psychiatric, or dental 
treatment not otherwise available.

Sec.  570.34  Expenses of furlough.

    All expenses of a furlough, including transportation, food, 
lodging, and incidentals, are the responsibility of the inmate, the 
inmate's family, or other appropriate source approved by the Warden, 
except that the government may bear the expense of a furlough if it is 
for the government's primary benefit.

Sec.  570.35  Transfer furlough eligibility requirements.

    (a) Inmates transferring to administrative, low, medium, or high 
security facilities are generally not eligible for participation in the 
Bureau's transfer furlough program.
    (b) For a transfer furlough, inmates other than those described in 
paragraph (a) of this section must:
    (1) Be physically and mentally capable of completing the furlough; 
and
    (2) Demonstrate sufficient responsibility to provide reasonable 
assurance that furlough requirements will be met.
    (c) Inmates transferring to minimum security facilities must meet 
the requirements described in paragraph (b) of this section, and must 
also be:
    (1) Transferring from a low or minimum security facility; and
    (2) Appropriate for placement in a minimum security facility based 
on the inmate's security designation and custody classification at the 
time of transfer.
    (d) Inmates transferring to community confinement must meet the 
requirements described in paragraph (b) of this section, and must also 
be appropriate for placement in community confinement based on the 
inmate's security designation and custody classification at the time of 
transfer.

Sec.  570.36  Non-transfer furlough eligibility requirements.

    (a) An inmate may be eligible for a non-transfer furlough if the 
inmate meets the criteria described in 570.35(b) and the following 
additional criteria:

------------------------------------------------------------------------
                                           Then the inmate may only be
         If an inmate has . . .               considered  for . . .
------------------------------------------------------------------------
been confined at the initially           an emergency furlough.
 designated institution for less than
 90 days.
more than two years remaining until the  an emergency furlough.
 projected release date.
2 years or less remaining until the      an emergency furlough or a
 projected release date.                  routine day furlough.
18 months or less remaining until the    an emergency furlough, a
 projected release date.                  routine day furlough, or a
                                          routine overnight furlough
                                          within the institution's
                                          commuting area.
1 year or less remaining until the       an emergency furlough, a
 projected release date.                  routine day furlough, or a
                                          routine overnight furlough
                                          either within or outside the
                                          institution's commuting area.
------------------------------------------------------------------------

     (b) Ordinarily, Wardens will not grant a furlough to an inmate if:
    (1) The inmate is convicted of a serious crime against a person;
    (2) The inmate's presence in the community could attract undue 
public attention, create unusual concern, or diminish the seriousness 
of the offense; or
    (3) The inmate has been granted a furlough in the past 90 days.

Sec.  570.37  Procedures to apply for a furlough.

    (a) Application. Inmates may submit a furlough application to 
staff, who will review it for compliance with these regulations and 
Bureau policy.
    (b) Notification of decision. An inmate will be notified of the 
Warden's decision on the furlough application. Where a furlough 
application is denied, the inmate will be notified of the reasons for 
the denial.
    (c) Appeal. An inmate may appeal any aspect of the furlough program 
through the Administrative Remedy Program, 28 CFR Part 542, Subpart B.

Sec.  570.38  Conditions of Furlough.

    (a) An inmate who violates the conditions of a furlough may be 
considered an escapee under 18 U.S.C. 4082 or 18 U.S.C. 751, and may be 
subject to criminal prosecution and institution disciplinary action.

[[Page 1519]]

    (b) A furlough will only be approved if an inmate agrees to the 
following conditions and understands that, while on furlough, he/she:
    (1) Remains in the legal custody of the U.S. Attorney General, in 
service of a term of imprisonment;
    (2) Is subject to prosecution for escape if he/she fails to return 
to the institution at the designated time;
    (3) Is subject to institution disciplinary action, arrest, and 
criminal prosecution for violating any condition(s) of the furlough;
    (4) May be thoroughly searched and given a urinalysis, 
breathalyzer, and other comparable test, during the furlough or upon 
return to the institution, and must pre-authorize the cost of such 
test(s) if the inmate or family members are paying the other costs of 
the furlough. The inmate must pre-authorize all testing fee(s) to be 
withdrawn directly from his/her inmate deposit fund account;
    (5) Must contact the institution (or United States Probation 
Officer) in the event of arrest, or any other serious difficulty or 
illness; and
    (6) Must comply with any other special instructions given by the 
institution.
    (c) While on furlough, the inmate must not:
    (1) Violate the laws of any jurisdiction (federal, state, or 
local);
    (2) Leave the area of his/her furlough without permission, except 
for traveling to the furlough destination, and returning to the 
institution;
    (3) Purchase, sell, possess, use, consume, or administer any 
narcotic drugs, marijuana, alcohol, or intoxicants in any form, or 
frequent any place where such articles are unlawfully sold, dispensed, 
used, or given away;
    (4) Use medication that is not prescribed and given to the inmate 
by the institution medical department or a licensed physician;
    (5) Have any medical/dental/surgical/psychiatric treatment without 
staff's written permission, unless there is an emergency. Upon return 
to the institution, the inmate must notify institution staff if he/she 
received any prescribed medication or treatment in the community for an 
emergency;
    (6) Possess any firearm or other dangerous weapon;
    (7) Get married, sign any legal papers, contracts, loan 
applications, or conduct any business without staff's written 
permission;
    (8) Associate with persons having a criminal record or with persons 
who the inmate knows to be engaged in illegal activities without 
staff's written permission;
    (9) Drive a motor vehicle without staff's written permission, which 
can only be obtained if the inmate has proof of a currently valid 
driver's license and proof of appropriate insurance; or
    (10) Return from furlough with anything the inmate did not take out 
with him/her (for example, clothing, jewelry, or books).

[FR Doc. 2011-281 Filed 1-10-11; 8:45 am]
BILLING CODE 4410-05-P
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