7938 Federal Register / Vol. 87, No. 29 / Friday, February 11, 2022 / Rules and Regulations 

Note: The text of Part IIC of Form X–17A– 

5 does not and this amendment will not 

appear in the Code of Federal Regulations. 

Dated: February 2, 2022. 

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2022–02552 Filed 2–10–22; 8:45 am] 

BILLING CODE 8011–01–C 

DEPARTMENT OF JUSTICE 

Bureau of Prisons 

28 CFR Part 523 

[BOP–1032–F] 

RIN 1120–AA62 

Good Conduct Time Credit Under the 

First Step Act 

AGENCY: Bureau of Prisons, Justice. 

ACTION: Final rule. 

SUMMARY: The Bureau of Prisons 

(Bureau or BOP) modifies regulations on 

Good Conduct Time (GCT) credit to 

conform with legislative changes under 

the First Step Act (FSA). The changes 

made by the FSA to the process for 

awarding GCT credit have resulted in 

recalculation of the release date of most 

inmates. This final rule adopts the same 

calculation method set forth in the 

proposed rule published on this subject, 

and finalizes that proposed rule with 

the following minor change(s) described 

below. 

DATES: This rule is effective March 14, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Sarah N. Qureshi, Rules Administrator, 

Office of General Counsel, Bureau of 

Prisons, phone (202) 353–8248. 

SUPPLEMENTARY INFORMATION: 

I. Overview 

In this document, the Bureau modifies 

regulations on GCT credit to conform 

with changes made in the First Step Act 

of 2018 (FSA), Public Law 115–391, 

December 21, 2018, 132 Stat 5194. The 

Bureau published a proposed rule on 

this subject on December 31, 2019 (84 

FR 72274) with a comment deadline of 

March 2, 2020. Seventy-four comments 

were received during the comment 

period. Six of those 74 comments 

supported the proposed rule without 

qualification. The remaining 68 

comments raised some common issues, 

which we address below. 

II. Background. 

Section 102(b) of the FSA amended 18 

U.S.C. 3624(b) to provide that inmates 

may receive up to 54 days of GCT credit 

for each year of the sentence imposed by 

the court, instead of for each year of 

actual time served. See 18 U.S.C. 

3624(b)(1) (‘‘[A] prisoner who is serving 

a term of imprisonment of more than 1 

year other than a term of imprisonment 

for the duration of the prisoner’s life, 

may receive credit toward the service of 

the prisoner’s sentence of up to 54 days 

for each year of the prisoner’s sentence 

imposed by the court . . . .’’). As a 

practical matter, prior to this change, 

awarding GCT credit for each year of 

actual time served had routinely 

resulted in a de facto cap of roughly 47 

days per year of GCT credit. See Barber 

v. Thomas, 560 U.S. 474, 479 (2010). 

This final rule supports the FSA’s 

modification of the GCT credit 

determination, which will result in 

recalculation of the release date of most 

current inmates (with the exception of 

those serving sentences for offenses 

committed before November 1, 1987, 

sentences of one year or less, and 

sentences of life imprisonment). 

Under section 102(b)(2) of the FSA, 

this change to the manner in which GCT 

credit is applied could not be made 

effective until the Attorney General 

completed and released a recidivism 

risk and needs assessment system, 

which was done on July 19, 2019. A 

total of 3,163 inmates were released 

from Bureau custody on July 19, 2019, 

after the Bureau recalculated release 

dates under the amended GCT credit 

scheme in the FSA. 

The Bureau has completed the 

process of recalculations for the 

remainder of the inmate population, 

prioritizing recalculations by proximity 

of projected release dates, and releasing 

inmates as appropriate. This rule 

focuses primarily on the proper 

calculation of GCT credit for the last 

chronological year of an inmate’s term 

of imprisonment, implementing the 

statutory instruction that ‘‘credit for the 

last year of a term of imprisonment shall 

be credited on the first day of the last 

year of the term of imprisonment.’’ 18 

U.S.C. 3624(b)(1). The Bureau has 

applied this calculation method since 

July 19, 2019, and the calculation 

method is the same one set forth in the 

Bureau’s proposed rule. 

III. Discussion of Comments and BOP’s 

Responses 

Comment: The Bureau should choose 

the second alternative described in the 

proposed rule instead of the third 

alternative proposed by the Bureau. 

Sixty-four commenters urged the Bureau 

to adopt ‘‘Alternative 2,’’ the alternative 

interpretation of the FSA described in 

the proposed rule that would offer ‘‘the 

most Good Conduct Time credit 

possible.’’ To explain Alternative 2, we 

first provide some brief background. 

Previously, 18 U.S.C. 3624(b)(1) 

provided that inmates ‘‘may receive 

credit toward the service of the 

prisoner’s sentence beyond the time 

served, of up to 54 days at the end of 

each year of the prisoner’s term of 

imprisonment, beginning at the end of 

the first year of the term.’’ The statute 

then specified that ‘‘credit for the last 

year or portion of a year of the term of 

imprisonment shall be prorated and 

credited within the last six weeks of the 

sentence.’’ 

Section 102(b)(1) of the FSA, 

however, amended 18 U.S.C. 3624(b)(1) 

to require that inmates serving a 

sentence (other than a life sentence) of 

more than a year receive GCT credit of 

‘‘up to 54 days for each year of the 

prisoner’s sentence imposed by the 

court’’—as opposed to for ‘‘time 

served’’—and that GCT ‘‘credit for the 

last year of a term of imprisonment . . . 

be credited on the first day of the last 

year of the term of imprisonment.’’ 

In the proposed rule, the Bureau 

discussed three possible interpretations 

of the FSA’s changes to 18 U.S.C. 

3624(b)(1): 


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1Fifty-four of the comments were two-word to 

two-sentence online responses, simply indicating 

support for Alternative 2. 

2 Indeed, Congress appears to have deleted the 

reference to ‘‘prorated’’ credit in the last sentence 

of section 3624(b)(1) not in an attempt to implicitly 

forbid prorating, but because that sentence no 

longer sets forth a special rule of calculation for the 

‘‘last year of a term of imprisonment.’’ Before the 

FSA, Congress directed the Bureau to calculate 

credit by reference to the ‘‘term of imprisonment’’— 

a phrase that the Supreme Court held referred to 

time served, rather than the sentence imposed. See 

Barber v. Thomas, 560 U.S. 474, 483 (2010). The 

FSA abrogated that holding, amending the first 

sentence of section 3624(b)(1) to require the Bureau 

to calculate credit based on the ‘‘sentence imposed 

by the court’’ and to award up to 54 days for each 

year (including the last year) of a sentence imposed. 

The last sentence now addresses only when ‘‘credit 

for the last year of a term of imprisonment’’ should 

be awarded, not how credit for that last year should 

be calculated. 18 U.S.C. 3624(b)(1) (emphases 

added). Because Congress no longer intended for 

the Bureau to calculate GCT based on the ‘‘term of 

imprisonment,’’ Congress had no reason to retain 

the reference to prorating credit for the ‘‘last year 

of a term of imprisonment’’ in this sentence. 

Alternative 1: The Bureau should 

award no GCT credit for any portion of 

a sentence imposed that is less than 12 

months (i.e., the Bureau should award 

no credit for any partial-year portion of 

the sentence imposed). 

Alternative 2: The Bureau should 

award a full 54 days of GCT credit for 

any partial final year of the sentence 

imposed. 

Alternative 3: The Bureau should 

award prorated credit for any partial 

final year of the sentence imposed. 

As stated above, sixty-four 

commenters urged the Bureau to adopt 

Alternative 2, because the commenters 

felt it would offer ‘‘the most Good 

Conduct Time credit possible.’’ 1

The Bureau offers the following 

explanations of the alternative 

interpretations of the changes made to 

the GCT credit statute by the FSA, in 

order to clarify the issues raised and 

explain why Alternative 3 remains the 

most logical and equitable option. 

Alternative 1 

The revised section 3624(b)(1) directs 

the Bureau to award GCT credit for ‘‘the 

last year of the term of imprisonment.’’ 

18 U.S.C. 3624(b)(1). The FSA removed 

language from the statute which had 

instructed the Bureau to prorate GCT 

credit ‘‘for the last year or portion of a 

year,’’ it could be argued that this 

deletion means that if an inmate has any 

part of his her or sentence that is less 

than 12 months, he or she earns no GCT 

credit for that portion of the sentence. 

This interpretation, however, would 

ignore Congress’s apparent intent to 

award credit for the full ‘‘sentence 

imposed.’’ See id. Congress amended 

section 3624(b)(1) following the 

Supreme Court’s decision in Barber v. 

Thomas, which interpreted the 

provision to allow GCT credit based on 

the time actually served, rather than the 

sentence imposed. 560 U.S. at 483. The 

practical effect of that decision, as noted 

above, was to place a cap of roughly 47 

days per year of GCT credit. Id. at 479. 

The FSA abrogated that holding, 

amending section 3624(b)(1) to 

expressly tie GCT credit to the 

‘‘sentence imposed,’’ 18 U.S.C. 

3624(b)(1), thereby ‘‘allowing prisoners 

to earn 54 days of credit per year, rather 

than 47 days.’’ 164 Cong. Rec. S7774 

(daily ed. Dec. 18, 2018). 

Under Alternative 1, any inmate 

whose sentence imposed was not a 

whole number of years would earn GCT 

credit at a rate of less than 54 days per 

year. An inmate sentenced to 2.9 years, 

for instance, would receive 108 days of 

credit (54 days for each of the first 2 

years), or an average of roughly 37 days 

of GCT per year. That is the kind of 

result Congress sought to avoid by 

amending section 3624(b)(1), and for 

that reason, the Bureau stated in the 

proposed rule that this interpretation is 

erroneous, unfair, and contradictory to 

Congressional intent. No commenters 

questioned the Bureau’s rejection of this 

interpretation. 

Alternative 2 vs. Alternative 3 

Under both Alternative 2 and 

Alternative 3, inmates earn 54 days of 

GCT for each full year of the sentence 

imposed. For sentences that include a 

partial year, Alternative 2 would require 

the Bureau not to prorate GCT credit for 

the final partial year of the imposed 

sentence, but rather to award a full 54 

days of GCT credit for that final partial 

year. The Bureau does not believe that 

this interpretation of the statute—under 

which 54 days of credit would be 

awarded to an inmate regardless of the 

length of the sentence imposed—would 

be fair or appropriate or reflects 

accurately the statutory text regarding 

calculation of GCT credit. 

Instead, the Bureau adopts the 

Alternative 3 interpretation described in 

the proposed rule, under which it 

awards prorated credit for any partial 

year in an imposed sentence. 

The Bureau’s interpretation follows 

from the text of the statute, which 

directs that BOP award up to 54 days for 

‘‘each year’’ of the sentence imposed, 

rather than for each year or partial year 

of an inmate’s sentence. 18 U.S.C. 

3624(b)(1) (emphasis added). The best 

way to effectuate that statutory 

command is to prorate, ensuring that an 

inmate receives ‘‘up to 54 days’’—but no 

more—‘‘for each year’’ imposed by the 

court and partial credit for partial years 

at the end of the sentence imposed by 

the court. See id. This has the effect of 

maintaining the maximum rate at which 

inmates can earn GCT credit at 54 days 

per year, as directed by the statute. 

Alternative 2, in contrast, would permit 

inmates to exceed this statutory rate. An 

inmate serving a sentence of 9 years and 

a day, for example, would receive 540 

days of GCT credit—an average of 

nearly 60 days of GCT credit ‘‘for each 

year of the prisoner’s sentence imposed 

by the court.’’ Id. The alternative would 

thus contravene the statutory command 

of awarding ‘‘up to 54 days for each year 

of the prisoner’s sentence imposed by 

the court’’ by regularly awarding credit 

at a rate of more than 54 days per year. 

Id. (emphasis added). 

To be sure, when Congress enacted 

the FSA to require calculating GCT 

credit by reference to the ‘‘sentence 

imposed by the court,’’ it eliminated the 

express direction that the Bureau should 

‘‘prorate[ ]’’ credit for the final ‘‘portion 

of a year of the term of imprisonment,’’ 

i.e., the final portion of the term served. 

The statute is now silent as to how the 

Bureau should calculate credit if the 

sentence imposed includes a final 

‘‘portion of a year.’’ The Bureau 

carefully considered that statutory 

history, but it ultimately concluded that 

any negative inference from Congress’s 

deletion of the prior reference to 

prorating is insufficient to overcome the 

conflict with the current statute’s text, 

which limits credit to ‘‘up to’’ 54 days 

of credit for the last year.2

That is especially so because 

Alternative 2 would lead to arbitrary, 

illogical, and unwarranted disparities 

among inmates. Under Alternative 2, 

inmates sentenced to more time would 

systematically secure an earlier release 

date than certain others sentenced to 

less time. Table 1 below illustrates the 

difference, and resulting inequities, in 

release dates under Alternative 2 and 

under Alternative 3, for a hypothetical 

inmate whose imprisonment term began 

on January 1, 2020. 


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3Technically, the inmate would receive 108.188 

days of GCT, but it is the Bureau’s convention to 

round down any partial day of GCT to the nearest 

whole number. The Bureau does this because 

sentences are imposed in days, rather than hours, 

so the Bureau cannot award an inmate a partial day 

(i.e., a few hours) of GCT. Nor can the Bureau round 

up to the nearest whole number, as that would 

result in an inmate being released before he has 

earned the requisite GCT credit. 

4The statute does expressly create one such 

anomaly: The statute on its face applies only to 

inmates ‘‘serving a term of imprisonment of more 

than 1 year,’’ 18 U.S.C. 3624(b)(1), which means 

that inmates sentenced to one year or less are not 

eligible for GCT credit. Accordingly, an inmate 

sentenced to one year and a day may well be 

released earlier than an inmate sentenced to a year. 

Alternative 2, however, would make that disparity 

even more pronounced, as it would allow an inmate 

sentenced to one year and a day to receive 108 days 

of GCT credit (rather than the 54 days received 

under the prorated option). It would also extend the 

disparity for sentences of all lengths. 

5These commenters specifically cited Hoenig v. 

United States, 2019 WL 2006695 (N.D. Tex. May 7, 

2019). Notably, however, the Hoenig court did not 

find that the Bureau’s interpretation of the FSA was 

incorrect, but instead found that because the 

relevant statutory provisions had not yet taken 

effect, ‘‘the question of whether the BOP has erred 

in the calculation of Hoenig’s sentence is premature 

and not yet ripe.’’ See id. at *2. 

TABLE 1—APPLICATION OF GCT CREDIT UNDER ALTERNATIVES 2 AND 3 

Sentence imposed 

(prison term starting Jan. 

1, 2020) 

GCT credit for all full 

chronological years 

(54 days per year) 

GCT credit 

for portion of last 

chronological year 

Total GCT 

credit Release date 

ALT. 2: ............................... 24 months ......................... 108 0 108 Sept. 14, 2021. 

ALT. 3: 

ALT. 2: ............................... 24 months + 1 day ............ 108 54 162 July 23, 2021. 

ALT. 3: ............................... 0 108 Sept. 15, 2021. 

ALT. 2: ............................... 25 months ......................... 108 54 162 Aug. 22, 2021. 

ALT. 3: 4 112 Oct. 11, 2021. 

ALT. 2: ............................... 26 months ......................... 108 54 162 Sept. 19, 2021. 

ALT. 3: 8 116 Nov. 4, 2021. 

ALT. 2: ............................... 32 months ......................... 108 54 162 Mar. 22, 2022. 

ALT. 3: 35 143 Apr. 10, 2022. 

ALT. 2: ............................... 36 months ......................... 162 0 162 July 22, 2022. 

ALT. 3:.

ALT. 2: ............................... 37 months ......................... 162 54 216 Jun. 29, 2022. 

ALT. 3: 4 166 Aug. 18, 2022. 

As shown in the chart, under either 

alternative, an inmate sentenced to 24 

months would receive a maximum of 

108 days of GCT credit (54 days for each 

year) with a release date of September 

14, 2021. Under Alternative 2, an 

inmate with a sentence of 24 months 

and one day would have an earlier 

release date of July 23, 2021. The 

Bureau would award 54 days of GCT 

credit for each of the two full years 

imposed, as well as 54 days of credit for 

the additional single day, resulting in a 

total of 162 days subtracted from his 

sentence to calculate his release date. 

Alternative 3 avoids this unwarranted 

disparity and inequity: The Bureau 

would prorate credit for the final date of 

the inmate’s sentence, leading to a 

maximum of 108 days of GCT credit.3

That inmate would have a release date 

of September 15, 2021. 

While courts might accept that 

inequitable result if Congress had 

expressly required it, an agency should 

generally seek to avoid introducing such 

anomalies in its interpretation of 

statutory text. Cf. Validus Reinsurance, 

Ltd. v. United States, 786 F.3d 1039, 

1045–46 (D.C. Cir. 2015) (courts ‘‘must 

[ ] avoid statutory interpretations that 

bring about an anomalous result when 

other interpretations [are] available’’) 

(internal quotation marks omitted); 

Sturgeon v. Frost, 139 S. Ct. 1066, 1080 

n.3 & 1084 (2019) (declining to defer to 

an agency’s interpretation that, though 

‘‘grammatically possible,’’ was 

inconsistent with statute’s context).4 In 

this case, it seems unlikely that 

Congress would have intended inmates 

sentenced to longer terms—often 

pursuant to Congress’s statutory 

sentencing schemes—to, in fact, serve 

shorter sentences. 

Alternative 3 is also most consistent 

with the premise behind GCT credit: 

Awarding sentencing credit for good 

conduct. In Barber v. Thomas, the 

Supreme Court interpreted the pre-FSA 

text of section 3624(b)(1) and explained 

that the ‘‘basic purpose’’ of the statute 

was to tie the award of GCT credits 

directly to good behavior during the 

preceding year of imprisonment. 560 

U.S. at 482. Alternative 3 maintains that 

relationship, while Alternative 2 would 

award inmates the same amount of GCT 

credit despite being sentenced to (and 

serving) different amounts of time. For 

example, under Alternative 2, an inmate 

sentenced to 2 years and one day would 

receive the same GCT credit as an 

inmate sentenced to 3 years: A total of 

162 days of GCT credit. Therefore, 

Alternative 2 benefits an inmate with 

one day left to serve in the final year 

and another inmate with 365 days left 

to serve in the identical way, resulting 

in an unfair administration of the GCT 

benefit. Likewise, under Alternative 2, 

an inmate sentenced to 2 years and 1 

day could misbehave for several days 

but still end up with more GCT credit 

than inmate who behaved perfectly but 

was sentenced to 2 years. 

Some commenters believe that the 

Bureau incorrectly relied upon Barber 

in the proposed rule, noting that 

‘‘several courts have found the FSA 

amendments to have ‘effectively 

abrogate[d] Barber v. Thomas.’ ’’ 5 The 

Bureau agrees that the FSA abrogated 

Barber’s holding that GCT credit should 

be based on time served rather than the 

sentence imposed. In doing so, Congress 

corrected a statutory ambiguity that 

resulted in inmates receiving a 

maximum of 47 days for each year 

imposed, and the Bureau’s final rule 

reflects that change. At the same time, 

Congress retained the instruction that 

GCT credit only be awarded ‘‘subject to 

determination by the Bureau of Prisons 

that, during that year, the prisoner has 

displayed exemplary compliance’’ with 

all relevant rules and laws governing 

inmate conduct. 18 U.S.C. 3624(b)(1). 

Congress thus retained the same 

underlying principle that GCT should 


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have some relation to ‘‘exemplary 

compliance’’ with BOP rules. A natural 

reading of FSA-amended section 

3624(b)(1) and adherence to the basic 

purpose of the statute support prorated 

credit for the last year of each inmate’s 

imprisonment term. 

Separately, some commenters 

assumed that section 3624(b)(1)’s ‘‘first 

day of the last year of the term of 

imprisonment’’ refers to the first day of 

the final calendar year of each inmate’s 

imprisonment term. However, section 

3624(b)(1) makes clear that credit for 

‘‘each year’’ must be calculated using 

the length of sentence actually imposed 

by the court. 18 U.S.C. 3624(b)(1) 

(emphasis added). The Bureau thus 

calculates the maximum amount of GCT 

credit available, and the effective term 

to serve, based on the sentence imposed, 

and uses that number to calculate the 

number of full years (‘‘anniversary 

periods’’) that an inmate will serve if he 

receives maximum GCT credit. 

Therefore, the ‘‘first day of the last year 

of the term of imprisonment’’ is the final 

anniversary date. 

Since the publication of the proposed 

rule, courts have upheld the Bureau’s 

general interpretation of how to 

calculate GCT credit under the FSA, 

though none have addressed the specific 

question at issue here. In Chambers v. 

Ebbert, for example, the court approved 

the Bureau’s calculation of GCT credit 

after an inmate challenged the Bureau’s 

assertion that less was earned due to the 

inmate’s unsatisfactory progress towards 

earning a GED. The court stated that the 

inmate is ‘‘eligible, but not 

automatically entitled, to receive up to 

54 days of good conduct time for each 

of his 15 years of imprisonment,’’ and 

that the Bureau had engaged in a careful 

review of the ‘‘anniversary date for yearend sentence calculations.’’ Chambers v. 

Ebbert, 2020 WL 1183321 (M.D. Penn. 

Mar. 12, 2020). See also Lewis v. Rios, 

2020 WL 555373 (D. Minn. Jan. 13, 

2020); United States v. Bowie, 2019 WL 

6464790 (D. Minn. Dec. 12, 2019); 

United States v. Rivera, 2019 WL 

6464786 (D. Minn. Dec. 12, 2019); 

Frazer v. Petrucci, 2019 WL 5887302 

(S.D.N.Y. Nov. 8, 2019). 

For the above reasons, the Bureau 

adopts the interpretation of the FSA and 

the method of calculation of GCT credit 

described in Alternative 3 of the 

proposed rule. 

Comment: The rule is inequitable if 

an inmate receives a low-level sanction 

and GCT credit is withheld or denied. 

One commenter was concerned that 

under the new regulation, GCT credit 

might be withheld if an inmate violates 

a ‘‘low-level’’ or low-severity prohibited 

act code under the current inmate 

disciplinary regulations at 28 CFR part 

541. That is not the Bureau’s intention, 

and such a policy was not reflected in 

the proposed rule. 

The proposed rule indicated that a 

sanction of forfeiture, disallowance, or 

withholding of GCT credit may only be 

imposed after the due process 

requirements described in 28 CFR part 

541 as part of the inmate disciplinary 

process have been followed, and only if 

such a sanction is found to be 

appropriate for the severity level 

category of the prohibited act committed 

by the inmate. 

The list of prohibited acts and 

corresponding available sanctions can 

be found in current regulations at 28 

CFR 541.3 (Table 1—Prohibited Acts 

and Available Sanctions). Prohibited 

acts are divided into four categories 

based on severity: Greatest, High, 

Moderate, and Low. Each category is 

accompanied by a list of sanctions 

which may be imposed by the Bureau 

after an inmate is found to have 

committed a prohibited act in that 

category, following the appropriate due 

process procedures in 28 CFR part 541. 

The proposed rule did not alter 

current procedures for the sanction of 

forfeiture, disallowance, or withholding 

of GCT credit for commission of 

prohibited acts, and the final rule 

likewise does not change the current 

system. 

That said, the Bureau is committed to 

ensuring that the forfeiture, 

disallowance, or withholding of GCT 

credit for commission of prohibited 

acts—and the restoration of that GCT 

credit—is administered equitably across 

all individuals in all facilities. To that 

end, the Department of Justice will 

conduct and publish a demographic 

analysis over the past three years of (1) 

all prohibited acts that have led to the 

forfeiture, disallowance, or withholding 

of GCT credit; and (2) instances in 

which GCT credit was restored to 

determine whether any practices are 

leading to a disparate impact. This 

information will be part of the Bureau’s 

evaluation whether a notice of proposed 

rulemaking regarding the classification 

of prohibited acts and their available 

penalties under the current inmate 

discipline program, codified at 28 CFR 

part 541, is warranted. 

Comment: Does the Bureau require a 

risk and needs assessment and a release 

plan as conditions for earning GCT 

credit? Several commenters submitted 

comments regarding the Bureau’s use of 

‘‘risk assessments’’ under the FSA as a 

condition of earning GCT credit. One 

commenter asked whether inmates are 

required to undergo a ‘‘needs 

assessment’’ or have a ‘‘solid release 

plan’’ as ‘‘conditions of obtaining’’ GCT 

credit, opining that if these 

requirements were imposed, recidivism 

rates would decrease tremendously. The 

commenter indicated that ‘‘the rule does 

mention that attending literacy classes 

or classes to obtain a GED would be one 

of the ways to earn credit[, as would] 

participating in any Bureau-authorized 

program. I am assuming the needs 

assessment falls under the Bureauauthorized program.’’ 

The commenter also noted that the 

FSA requires the Bureau to conduct 

inmate risk assessments, which the 

commenter suggested should help the 

Bureau to set programming goals for 

inmates, asking: ‘‘could participation 

[in] these assessment[s] be a mandated 

requirement to receiv[e] GCT credit[?] It 

sounds like it[’]s up to the Bureau[’s] 

discretion.’’ 

The commenter correctly interprets 

the FSA, but misunderstands the 

purpose of this rule, which is to explain 

how GCT credit will be calculated 

under the FSA. The changes to the 

method for calculating GCT credit are 

required by section 102(b) of the FSA, 

which amends 18 U.S.C. 3624(b) to 

indicate that inmates may receive up to 

54 days of GCT credit for each year of 

the sentence imposed by the court, 

instead of for each year of actual time 

served. 

The commenter is confusing the 

changes to GCT credit calculations 

mandated by section 102(b) of the FSA 

with FSA ‘‘Time Credits,’’ which are 

authorized under section 101 of the 

FSA, and for which the Bureau will be 

publishing a separate rule. Broadly 

speaking, section 101 of the FSA 

provides that an eligible inmate in 

Bureau custody who successfully 

completes Evidence-Based Recidivism 

Reduction programs or Productive 

Activities may earn FSA Time Credits to 

be applied towards 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 early transfer to supervised 

release (i.e., early satisfaction of the 

inmate’s sentence) under 18 U.S.C. 

3624(g). FSA Time Credits are not the 

same as GCT credits and will not be 

earned or applied in the same manner. 

The commenter’s confusion is 

understandable. Section 102(b)(2) of the 

FSA indicated that all the amendments 

made by section 102 (pertaining to GCT 

credits) could only take effect after the 

Attorney General completed and 

released the risk and needs assessment 

system described in section 101(a) 

(largely pertaining to FSA Time 


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6Section 101(a) amends 18 U.S.C. 3632(a) to 

require the Attorney General to consult with an 

Independent Review Committee, also authorized by 

the FSA, to develop a risk and needs assessment 

system. 

Credits).6 The Department of Justice 

publicly released this risk and needs 

assessment system on July 19, 2019. 

Therefore, in the proposed rule, we 

explained that the Bureau had already 

begun recalculating release dates due to 

the changes made by section 102(b) to 

the Bureau’s GCT credit calculation 

method in anticipation of the July 19, 

2019 release of the risk and needs 

assessment system. 

Because explaining this point 

required a discussion of the release of 

the risk and needs assessment, the 

proposed rule may have given the 

impression that the risk and needs 

assessment was somehow connected to 

the process of calculating GCT credit, 

which is incorrect. The only connection 

between the risk and needs assessment 

and GCT credit is that the FSA 

conditioned the Bureau’s 

implementation of the modified method 

of GCT credit calculation on the timing 

of the public release of the risk and 

needs assessment tool. Otherwise, as a 

practical matter, earning GCT credit is 

not predicated or conditioned upon any 

requirement that inmates have a plan for 

release or go through a risk assessment. 

Comment: The proposed rule would 

prevent elderly offenders eligible for 

home confinement from earning GCT. 

One comment was comprised entirely of 

what appeared to be a reprint of an 

article or editorial entitled ‘‘Durbin, Lee 

Introduce Bill To Allow Nonviolent 

Elderly Prisoners Eligible For Release 

To Home Confinement To Benefit From 

Good Time Credit.’’ The article had an 

explanatory subtitle: ‘‘The First Step Act 

Reauthorized And Expanded A Pilot 

Program To Place Elderly And 

Terminally Ill Inmates In Home 

Confinement, But BOP’s 

Misinterpretation Of This Provision 

Will Result In Elderly Offenders 

Unnecessarily Spending A Longer Time 

Behind Bars Before Becoming Eligible 

For Release To Home Confinement.’’ 

This comment (including the article it 

reproduces) appears to refer to a bill 

passed in the House of Representatives 

on December 3, 2019 as H.R. 4018 and 

introduced in the Senate on December 

12, 2019 as S.3035, the Elderly Home 

Detention Pilot Program Technical 

Corrections Act of 2019. The House 

Judiciary Committee Report 

accompanying this bill explains that 

H.R. 4018, a bill ‘‘ ‘[t]o provide that the 

amount of time that an elderly offender 

must serve before being eligible for 

placement in home detention is to be 

reduced by the amount of good time 

credits earned by the prisoner, and for 

other purposes,’ would ensure that 

participants in the Second Chance Act 

elderly prisoner pilot program receive 

credit for good conduct time.’’ H. Rept. 

116–311, at 2 (2019). 

The Bureau’s current practice permits 

inmates who participate in the elderly 

prisoner pilot program to earn GCT 

credit, calculated with respect to their 

projected release date. The projected 

release date includes release from time 

in home detention or community 

confinement. S.3035 would not affect 

the Bureau’s process for calculating GCT 

credit, but rather the determination of 

eligibility for elderly offender home 

confinement. The bill would provide 

that elderly offenders would become 

eligible for home confinement under the 

elderly offender pilot program if they 

had served two-thirds of their sentence 

as calculated based on their projected 

release date (which might be reduced by 

GCT credit), instead of their full term of 

sentence as imposed by the court. This 

new method of calculating eligibility for 

elderly offender home confinement 

would not impact an inmate’s actual 

accrual or application of GCT credit in 

any way. 

Comment: The proposed rule will 

NOT make inmates eligible for the 

maximum of 12 months prerelease 

Residential Reentry Center (RRC) 

placement, contrary to the Second 

Chance Act’s amendments to 18 U.S.C. 

3624(c)(6)(C). Section 3624(c)(6)(C) of 

title 18 requires the Bureau to ensure 

that community confinement placement 

is ‘‘of sufficient duration to provide the 

greatest likelihood of successful 

reintegration into the community.’’ One 

commenter felt that the statute’s 

requirement of ‘‘sufficient duration’’ 

should be interpreted to require the 

Bureau to afford qualifying inmates the 

maximum of 12 months of prerelease 

RRC placement. 

As an initial matter, this comment 

does not address the proposed rule or 

the revised method of computing GCT 

credits under the FSA, and thus is not 

relevant to the final rule the Bureau 

issues today. Nonetheless, the Bureau 

notes that the commenter may have 

inadvertently overlooked the provisions 

directly before subparagraph (C). In 

subparagraph (A), the statute also 

requires the Bureau to ensure that 

community confinement is consistent 

with 18 U.S.C. 3621(b), which mandates 

that the Bureau designate each inmate to 

a place of imprisonment subject to a list 

of specific factors. The Bureau is 

specifically instructed by this statute to 

consider, for each designation 

determination, bed availability, the 

specific inmate’s security designation, 

programming needs, mental and 

medical needs, faith-based needs, 

sentencing court recommendations, 

security concerns, and proximity to the 

inmate’s primary residence. 

Additionally, the Bureau must also 

consider the resources of the facility, the 

circumstances of the inmate’s offense, 

the inmate’s history and characteristics, 

court statements regarding the purposes 

of the sentence imposed, and 

recommendations or relevant policies of 

the Sentencing Commission. 

Consideration of all these very specific 

factors necessarily requires a case-bycase determination, as required by the 

remainder of 18 U.S.C. 3624(c)(6)(B), 

which, after referring to the exhaustive 

list of required designation 

considerations in section 3621(b), 

further reinforces that the Bureau must 

make the determination of community 

confinement placement ‘‘on an 

individual basis.’’ 18 U.S.C. 

3624(c)(6)(B). 

In the context of the full text of the 

statute, therefore, the commenter’s 

assertion that 18 U.S.C. 3624(c)(6)(C) 

requires the Bureau to allow 12 months 

of community confinement in all cases, 

for all inmates, seems to be incorrect. 

This reading of the statute directly 

conflicts with the statute’s mandate that 

the Bureau make this determination 

after a careful and thorough 

consideration of many factors on an 

individualized basis. 

Comment: With regard to literacy 

requirements, there should be several 

changes to the Bureau’s education 

programs. One commenter 

recommended specific ratios of GED, 

alternative literacy, and vocational 

training ‘‘tutors’’ per number of inmates, 

suggested that the Bureau provide 

payment and bonuses to inmates who 

tutor other inmates, and encouraged 

inmate placement in United States 

Department of Labor apprenticeship 

programs for teacher’s aides. These 

recommendations will be taken under 

consideration by the Bureau and in 

consultation with Departments of Labor 

and Education, as appropriate, as it 

continues to develop inmate 

educational and vocational training 

opportunities. 

Change in terminology regarding 

immigrants in federal custody. We make 

one minor change to conform with 

Executive Order 14012, Restoring Faith 

in Our Legal Immigration Systems and 

Strengthening Integration and Inclusion 

Efforts for New Americans, issued on 

Feburary 2, 2021, and Executive Order 

14010, Creating a Comprehensive 

Regional Framework to Address the 

Causes of Migration, to Manage 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 87, No. 29 / Friday, February 11, 2022 / Rules and Regulations 7943 

Migration Throughout North and 

Central America, and to Provide Safe 

and Orderly Processing of Asylum 

Seekers at the United States Border, 

issued on February 5, 2021. Those 

Executive orders use the term 

‘‘noncitizen’’ in place of the terms 

‘‘alien’’ or ‘‘illegal alien.’’ Consistent 

with this representative change in 

terminology, and to promote accuracy, 

we likewise change the term ‘‘alien’’ in 

28 CFR 523.20(d)(3) to ‘‘noncitizen’’ 

wherever it appears. 

Regulatory Analyses 

Executive Orders 12866 and 13563. 

Because this 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. 

Executive Order 13132. This 

regulation will not have substantial 

direct effect on the States, on the 

relationship between the National 

Government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, under 

Executive Order 13132, we determine 

that this regulation does not have 

sufficient federalism implications to 

warrant the preparation of a Federalism 

Assessment. 

Regulatory Flexibility Act. The 

Director of the Bureau of Prisons, under 

the Regulatory Flexibility Act (5 U.S.C. 

605(b)), reviewed this regulation and by 

approving it certifies that it will not 

have a significant economic impact 

upon a substantial number of small 

entities for the following reasons: This 

regulation 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 regulation 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 

regulation is not a major rule as defined 

by the Congressional Review Act, 5 

U.S.C. 804. 

List of Subjects in 28 CFR Part 523 

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 part 523 as 

follows: 

PART 523—COMPUTATION OF 

SENTENCE 

■ 1. The authority citation for 28 CFR 

part 523 continues 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. Revise § 523.20 to read as follows: 

§ 523.20 Good conduct time. 

(a) The Bureau of Prisons (Bureau or 

BOP) awards good conduct time (GCT) 

credit to inmates under conditions 

described in this section. GCT credit 

may be reduced if an inmate: 

(1) Commits prohibited acts which 

result in certain disciplinary sanctions 

(see part 541 of this chapter); or 

(2) Fails to comply with literacy 

requirements in this section and part 

544 of this chapter. 

(b) For inmates serving a sentence for 

offenses committed on or after 

November 1, 1987: 

(1) The Bureau will award inmates up 

to 54 days of GCT credit for each year 

of the sentence imposed by the court. 

Consistent with this methodology, the 

Bureau will initially determine a 

projected release date by calculating the 

maximum GCT credit possible based on 

the length of an inmate’s imposed 

sentence. The projected release date is 

subject to change during the inmate’s 

incarceration. 

(2) The Bureau will award prorated 

credit for any partial final year of the 

sentence imposed, subject to the 

requirements in this section. 

Accordingly, BOP calculates the 

projected GCT credit to be awarded for 

any portion of a sentence that is less 

than a full year at a prorated amount. 

(3) An inmate may receive up to 54 

days of GCT credit on each anniversary 

date of his or her imposed sentence, 

subject to the requirements in this 

section. Credit for the last year of a term 

of imprisonment is awarded the day 

after the end of the final ‘‘anniversary 

period,’’ unless the final year is a 

complete year, in which case credit for 

the last year is awarded on the first day 

of the final anniversary period 

(4) When the inmate reaches the 

Bureau-projected release date, the 

sentence will be satisfied and the 

inmate will be eligible for release. 

(c) For inmates serving a sentence for 

offenses committed on or after 

November 1, 1987, but before September 

13, 1994, GCT credit is vested once 

received and cannot be withdrawn. 

(d)(1) For inmates serving a sentence 

for offenses committed on or after 

September 13, 1994, but before April 26, 

1996, all GCT credit will vest annually 

only for inmates who have earned, or 

are making satisfactory progress toward 

earning, a high school diploma, 

equivalent degree, or Bureau-authorized 

alternative program credit (see part 544 

of this chapter). 

(2) For inmates serving a sentence for 

an offense committed on or after April 

26, 1996, the Bureau will award: 

(i) Up to 54 days of GCT credit for 

each year of the sentence imposed, 

applied on the anniversary date of his 

or her imposed sentence, if the inmate 

has earned or is making satisfactory 

progress toward earning a high school 

diploma, equivalent degree, or Bureauauthorized alternative program credit; or 

(ii) Up to 42 days of GCT credit for 

each year of the sentence imposed, 

applied on the anniversary date of his/ 

her imposed sentence, if the inmate 

does not meet conditions described in 

paragraph (d)(2)(i) of this section. 

(3) Notwithstanding the requirements 

of paragraphs (d)(1) and (2) of this 

section, a noncitizen (inmate who is not 

a citizen of the United States) who is 

subject to a final order of removal, 

deportation, or exclusion, is not 

required to participate in a literacy 

program to earn yearly awards of GCT 

credit. However, such inmates remain 

eligible to participate in literacy 

programs under part 544 of this chapter. 

[FR Doc. 2022–02876 Filed 2–10–22; 8:45 am] 

BILLING CODE 4410–05–P 

DEPARTMENT OF THE TREASURY 

Office of Foreign Assets Control 

31 CFR Part 554 

Burundi Sanctions Regulations 

AGENCY: Office of Foreign Assets 

Control, Treasury. 

ACTION: Final rule. 


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