[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Rules and Regulations]
[Pages 7938-7943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02876]


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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.

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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):

[[Page 7939]]

    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\
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    \1\ Fifty-four of the comments were two-word to two-sentence 
online responses, simply indicating support for Alternative 2.
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    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\
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    \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.
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    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.

[[Page 7940]]



                                              Table 1--Application of GCT Credit Under Alternatives 2 and 3
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                                                                GCT credit for all
                                          Sentence imposed      full  chronological     GCT credit  for       Total GCT
                                       (prison term starting    years  (54 days per     portion of last        credit               Release date
                                           Jan. 1, 2020)               year)          chronological year
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ALT. 2:.............................  24 months..............                   108                     0             108  Sept. 14, 2021.
ALT. 3:
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ALT. 2:.............................  24 months + 1 day......                   108                    54             162  July 23, 2021.
ALT. 3:.............................                                                                    0             108  Sept. 15, 2021.
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ALT. 2:.............................  25 months..............                   108                    54             162  Aug. 22, 2021.
ALT. 3:                                                                                                 4             112  Oct. 11, 2021.
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ALT. 2:.............................  26 months..............                   108                    54             162  Sept. 19, 2021.
ALT. 3:                                                                                                 8             116  Nov. 4, 2021.
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ALT. 2:.............................  32 months..............                   108                    54             162  Mar. 22, 2022.
ALT. 3:                                                                                                35             143  Apr. 10, 2022.
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ALT. 2:.............................  36 months..............                   162                     0             162  July 22, 2022.
ALT. 3:.............................
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ALT. 2:.............................  37 months..............                   162                    54             216  Jun. 29, 2022.
ALT. 3:                                                                                                 4             166  Aug. 18, 2022.
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    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.
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    \3\ Technically, 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.
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    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.
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    \4\ The 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.
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    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

[[Page 7941]]

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.
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    \5\ These 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.
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    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 year-end 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 Bureau-authorized 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

[[Page 7942]]

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.
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    \6\ Section 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.
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    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-by-case 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

[[Page 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

0
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.


0
2. Revise Sec.  523.20 to read as follows:


Sec.  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 Bureau-
authorized 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