Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Rules and Regulations 2705 

SCHEDULE OF FEES FOR CONSULAR SERVICES

Item No. Fee 

*******

32. * * * 

(e) Certain adoptee applicants for replacement Immigrant Visas as described in 22 CFR 42.71(b)(2) ..................................... No Fee. 

(f) Certain immigrant visa applicants previously refused pursuant to Proclamation 9645 or Proclamation 9983, as described 

in 22 CFR 42.71(b)(3) ............................................................................................................................................................... No Fee. 

*******

34. * * * 

(a) Certain immigrant visa applicants previously refused solely pursuant to Proclamation 9645 or Proclamation 9983, as described in 22 CFR 42.71(b)(3) .................................................................................................................................................. No Fee. 

*******

PART 42—VISAS: DOCUMENTATION 

OF IMMIGRANTS UNDER THE 

IMMIGRATION AND NATIONALITY 

ACT, AS AMENDED 

■ 3. The authority citation for part 42 

continues to read as follows: 

Authority: 8 U.S.C. 1104 and 1182; Pub. 

L. 105–277, 112 Stat. 2681; Pub. L. 108–449, 

118 Stat. 3469; The Convention on Protection 

of Children and Co-operation in Respect of 

Intercountry Adoption (done at the Hague, 

May 29, 1993), S. Treaty Doc. 105–51 (1998), 

1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); 

42 U.S.C. 14901–14954 (Pub. L. 106–279, 114 

Stat. 825); 8 U.S.C. 1101 (Pub. L. 111–287, 

124 Stat. 3058); 8 U.S.C. 1154 (Pub. L. 109– 

162, 119 Stat. 2960); 8 U.S.C. 1201 (Pub. L. 

114–70, 129 Stat. 561). 

■ 4. Section 42.71 is amended by 

revising paragraph (b) to read as follows: 

§ 42.71 Authority to issue visas; visa fees. 

* * * * * 

(b) Immigrant visa fees—(1) Payment 

of fees. The Secretary of State prescribes 

a fee for the processing of immigrant 

visa applications. Except as provided in 

paragraphs (b)(2) and (3) of this section, 

an individual registered for immigrant 

visa processing at a post designated for 

this purpose by the Deputy Assistant 

Secretary for Visa Services must pay the 

fee upon being notified that a visa is 

expected to become available in the near 

future, and upon being requested to 

obtain the supporting documentation 

needed to apply formally for a visa, in 

accordance with instructions received 

with such notification. The fee must be 

paid before an applicant at a post so 

designated will receive an appointment 

to appear and make application before 

a consular officer. Applicants at a post 

not yet so designated will pay the fee 

immediately prior to formal application 

for a visa. A fee collected for the 

processing of an immigrant visa 

application is refundable only if the 

principal officer of a post or the officer 

in charge of a consular section 

determines that the application was not 

adjudicated as a result of action by the 

U.S. Government over which the alien 

had no control and for which the alien 

was not responsible, which precluded 

the applicant from benefitting from the 

processing, or as provided in paragraph 

(b)(2) of this section. 

(2) Waiver or refund of fees for 

replacement immigrant visas for 

adoptees. The consular officer shall 

waive the application processing fee for 

a replacement immigrant visa or, upon 

request, refund such a fee where already 

paid, if the consular officer is satisfied 

that the alien, the alien’s parent(s), or 

the alien’s representative has 

established that: 

(i) The prior immigrant visa was 

issued on or after March 27, 2013, to an 

alien who has been lawfully adopted, or 

who is coming to the United States to 

be adopted, by a United States citizen; 

(ii) The alien was unable to use the 

original immigrant visa during the 

period of its validity as a direct result 

of extraordinary circumstances, 

including the denial of an exit permit; 

and 

(iii) The inability to use the visa was 

attributable to factors beyond the 

control of the adopting parent or parents 

and of the alien. 

(3) Exemption from fees for immigrant 

visa applicants previously refused solely 

pursuant to Proclamation 9645 or 

Proclamation 9983. An immigrant visa 

applicant shall be exempt from the 

application processing fee and the 

affidavit of support review fee, if the 

applicant was previously denied an 

immigrant visa on or between December 

8, 2017, and January 19, 2020; the sole 

ground of ineligibility was based on 

Proclamation 9645 or 9983; and the 

applicant is applying again for an 

immigrant visa. This paragraph (b)(3) 

provides only for a one-time exemption 

of the applicable fees per applicant. 

■ 5. Section 42.74 is amended by 

revising paragraph (a) to read as follows: 

§ 42.74 Issuance of new, replacement, or 

duplicate visas. 

(a) New immigrant visa for a special 

immigrant under INA 101(a)(27)(A) and 

(B). The consular officer may issue a 

new immigrant visa to a qualified alien 

entitled to status under INA 

101(a)(27)(A) or (B), provided that: 

(1) The alien establishes that the 

original visa has been lost, mutilated, or 

has expired; or that the alien will be 

unable to use it during the period of its 

validity; and 

(2) The alien pays anew the 

application processing fees prescribed 

in the Schedule of Fees (22 CFR 22.1); 

and 

(3) The consular officer ascertains 

whether the original issuing office 

knows of any reason why a new visa 

should not be issued. 

* * * * * 

Kevin E. Bryant, 

Deputy Director, Office of Directives 

Management, U.S. Department of State. 

[FR Doc. 2022–00829 Filed 1–18–22; 8:45 am] 

BILLING CODE 4710–06–P 

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. 

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 


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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 


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1See 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. 2See 18 U.S.C. 3621(h)(1). 

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 prosocial 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. 

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 FSAestablished 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. 

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. 


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3Most 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). 

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. 

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 nonFederal government agency, in mental 

health/psychiatric holds (either courtordered 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-of2018-risk-and-needs-assessmentsystem.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/thefirst-step-act-of-2018-risk-and-needsassessment-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 


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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-of2018-risk-and-needs-assessment-systemupdated.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. 


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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 faithbased 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 


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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, 


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4See 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.’’ 

however, will also be held responsible 

for any attendant disciplinary 

prohibited act code violations, e.g., 

failing to report to institution work 

detail.4

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 


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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 ‘‘nonviolent’’ 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 


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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 


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5See, 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 . . . .’’). 

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 DCimposed 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. 

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 nonviolent 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 reenter 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 


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6The 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. 

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 timecredit 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

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 


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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 

■ 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 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. 

§ 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). 

§ 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, antibullying, 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 traumainformed 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, 


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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. 

§ 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. 

§ 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. 

§ 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 

■ 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 


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Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Rules and Regulations 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. 

■ 4. Amend § 541.3 in paragraph (b), 

Table 1, by: 

■ a. Under the heading ‘‘Available 

Sanctions for Greatest Severity Level 

Prohibited Acts’’, adding the entry B.2 

in alphanumeric order; 

■ b. Under the heading ‘‘Available 

Sanctions for High Severity Level 

Prohibited Acts’’, adding the entry B.2 

in alphanumeric order; 

■ c. Under the heading ‘‘Available 

Sanctions for Moderate Severity Level 

Prohibited Acts’’, adding the entry B.2 

in alphanumeric order; and 

■ 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: 

§ 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). 

* * * * * * * 

* * * * * 

■ 5. Amend § 541.7 by revising 

paragraph (f) to read as follows: 

§ 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 § 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] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2021–0535; FRL–9444–02– 

R5] 

Air Plan Approval; Wisconsin; 

Wisconsin Nonattainment New Source 

Review Certification for the 2015 

Ozone NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving, as a State 

Implementation Plan (SIP) revision, 

Wisconsin’s certification that its SIP 

satisfies the nonattainment new source 

review (NNSR) requirements of the 

Clean Air Act (CAA) for the 2015 ozone 

National Ambient Air Quality Standard 

(NAAQS). 

DATES: This direct final rule will be 

effective March 21, 2022, unless EPA 

receives adverse comments by February 

18, 2022. If adverse comments are 

received, EPA will publish a timely 

withdrawal of the direct final rule in the 

Federal Register informing the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2021–0535 at http://

www.regulations.gov or via email to 

damico.genevieve@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 


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