[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Rules and Regulations]
[Pages 1892-1899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-593]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 545 and 550

[Docket Nos. BOP-1093-F; BOP-1109-F; BOP-1139-F]
RIN 1120-AA88; RIN 1120-AB07; RIN 1120-AB41


Drug Abuse Treatment Program: Subpart Revision and Clarification 
and Eligibility of D.C. Code Felony Offenders for Early Release 
Consideration

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes 
three proposed rules on the drug abuse treatment program. Finalizing 
all three proposed rules together results in a more uniform and 
comprehensive revision of our drug abuse treatment program (DATP) 
regulations. Specifically, this amendment will streamline and clarify 
these regulations, eliminating unnecessary text and obsolete language, 
and removing internal agency procedures that need not be in rules text.
    This rule clarifies the distinction between mandatory and voluntary 
participation in the drug abuse education course, removes eligibility 
limitations pertaining to cognitive impairments and learning 
disabilities, and addresses the effects of non-participation both in 
the drug abuse education course and in the residential drug abuse 
treatment program (RDAP). In this rule, we also add escape and 
attempted escape to the list of reasons an inmate may be expelled from 
the RDAP. Furthermore, in our regulation on considering inmates for 
early release, we remove obsolete language, add as ineligible for early 
release inmates with a prior felony or misdemeanor conviction for arson 
or kidnapping, and clarify that inmates cannot earn early release 
twice.

DATES: This rule is effective on March 16, 2009.

[[Page 1893]]


FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105, e-mail 
<a href="/cdn-cgi/l/email-protection#44060b14161108011704060b146a030b12"><span class="__cf_email__" data-cfemail="83c1ccd3d1d6cfc6d0c3c1ccd3adc4ccd5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: In this document, the Bureau of Prisons 
(Bureau) finalizes three proposed rules. The first was published on 
September 20, 2000 (65 FR 56840) (the 2000 proposed rule), and the 
second was published on July 1, 2004 (69 FR 39887) (the 2004 proposed 
rule). The third, published on November 2, 2006, proposed to revise 28 
CFR 550.55(a) of the 2004 proposed rule to extend early release 
consideration to D.C. Code felony offenders pursuant to D.C. Code Sec.  
24-403.01 (71 FR 64507) (the 2006 proposed rule).
    In this rule, we merge the three proposed rules, which will result 
in a more uniform and comprehensive revision of our DATP regulations. 
We discuss our responses to comments received for the three proposed 
rules separately.

The 2000 Proposed Rule

    The 2000 rule proposed amendments to requirements for the drug 
abuse education course and participation in the RDAP. In these rules, 
we finalize the changes we proposed with regard to the regulations on 
the Drug Abuse Education Course (new Sec.  550.51), the institution 
RDAP (new Sec.  550.53), eligibility for performance pay (new Sec.  
545.25), and incentives for participation (new Sec.  550.54).
    This rule clarifies the distinction between mandatory and voluntary 
participation in the drug abuse education course, removes eligibility 
limitations pertaining to cognitive impairments and learning 
disabilities, and addresses the effects of non-participation both in 
the drug abuse education course and in the institution RDAP.
    For consistency, we also revise the consequences pertaining to work 
assignment pay in the provisions which pertain to the drug abuse 
education course. We amend our regulations on inmate work and 
performance pay (28 CFR 545, subpart C) to conform with these 
requirements.

Comments on the 2000 Proposed Rule

    Non-U.S. citizen inmates. One commenter was concerned that we 
routinely deny access to the Drug Abuse Treatment Program (DATP) to 
``non-U.S. citizens.'' The Bureau does not deny drug abuse treatment to 
inmates based on their citizenship. Instead, we offer several program 
options, such as a drug abuse education course or non-residential drug 
abuse treatment to inmates who have drug problems but who do not 
otherwise meet the admission criteria for the RDAP. These options are 
currently available for ``non-U.S. citizen'' inmates.
    However, in light of the commenter's misunderstanding of our 
proposed rule, we do make a revision to clarify our intent. Section 
550.53(b) stated that, ``[u]pon the expiration of their sentence, 
inmates are eligible to be transported only to the place of conviction 
or legal residence within the United States or its territories.'' We do 
not intend this section to be understood to exclude non-U.S. citizens. 
We intended only that participants must be capable of completing each 
of the three components of the RDAP program (the unit-based component, 
follow-up services, and the transitional drug abuse treatment 
component) when they begin the program. We have therefore clarified 
this language in the regulation.
    Treatment for inmates who voluntarily participate. A commenter 
believed that the DATP incentives and program are limited to 
``individuals who may not seek therapy otherwise,'' and asks us to 
``include those inmates who have taken it up on [sic] themselves to 
seek therapy.''
    This commenter mistakenly believes that we routinely deny 
participation to certain inmates. However, inmates who volunteer for 
the drug program and otherwise meet the admission requirements can 
enter the DATP. The program is not limited to only those inmates whom 
staff designate for treatment.
    Delay in getting inmates into DATP. A commenter complained that 
inmates who wish to participate remain too long on waiting lists.
    Currently, the Bureau has over 7000 inmates waiting for residential 
treatment that is provided with limited Bureau resources. Also, inmates 
are selected for admission based on their proximity to release. 
Unfortunately, these two factors result in some inmates being on the 
waiting list for a long time.
    Drug abuse documentation. One commenter complained that it is 
unfair for inmates who want to participate in the drug abuse program to 
be rejected because ``drug abuse was not in their PSI or * * * they did 
not have documentation from a doctor.''
    Because the early release is such a powerful incentive, as 
evidenced by over 7000 inmates waiting to enter treatment, the Bureau 
must take appropriate measures to ensure that inmates requesting 
treatment actually have a substance abuse problem that can be verified 
with documentation. For those inmates who want treatment but do not 
have the requisite documentation to enter the RDAP, non-residential 
counseling services are available and encouraged. However, because we 
find it necessary to require documentation of drug abuse problems as a 
criterion for RDAP participation, we are not altering this requirement 
in the final rule.
    Adding other incentives. Finally, with regard to a regulation on 
incentives for program participation, which was proposed in the 2000 
rule, two commenters requested that we add other possible incentives, 
such as vocational training. However, residential drug program 
completers are always encouraged to improve their educational and 
vocational training when possible. Vocational training, as an 
incentive, and enhancing skills in a trade are covered by other Bureau 
policies and regulations.
    The commenters suggested possible ``incentives'' that are already 
part of other regulations which have other benefits for participation, 
such as the Bureau's Good Conduct Time regulations (28 CFR part 523), 
the Education regulations (28 CFR part 544), and Federal Prison 
Industries Inmate Work Programs (28 CFR part 345). Because we already 
provide these benefits in other regulations, we need not reiterate them 
or use them as incentives for drug abuse treatment.
    Also, the commenters recommended that, if we were not going to 
provide the enhanced incentives they recommended, that the incentives 
proposed in the regulation should be eliminated. The commenters 
suggested that the incentives we proposed were essentially meaningless 
and did not provide real motivation to voluntarily participate in the 
program.
    In anticipation of the incentives program, the Bureau conducted 
pilot programs to determine the usefulness of the enhanced incentives. 
As a follow up, we conducted focus groups of inmates at several 
institutions. The results of the pilot programs and the focus groups 
showed that the majority of inmates considered the enhanced incentives 
to be motivational. After internal deliberation, we have determined 
that the proposed incentives will encourage further inmate 
participation in the drug abuse treatment programs, contrary to the 
commenters' suggestions. We therefore retain the proposed new 
incentives in the final rule.
    Further, these incentives work in tandem with new Sec.  
550.53(h)(1), which provides disincentives for non-completion. This 
section states that if

[[Page 1894]]

inmates refuse to participate in RDAP, withdraw, or are otherwise 
removed from RDAP, they are not eligible for furloughs (other than 
possibly an emergency furlough); performance pay above maintenance pay 
level, bonus pay, or vacation pay; and/or Federal Prison Industries 
work program assignments (unless the Warden makes an exception on the 
basis of work program labor needs).
    Each of these three privileges are available for inmates to earn 
through various forms of good behavior, including participation in 
RDAP. It would be inconsistent to award an inmate a privilege in one 
area, such as a furlough, special pay, or special work assignment, if 
the inmate has demonstrated poor behavior in other areas, such as 
refusal, withdrawal, or removal from RDAP. The Bureau's furlough 
regulations state that an inmate is only eligible for a furlough if, 
among other things, the inmate ``has demonstrated sufficient 
responsibility to provide reasonable assurance that furlough 
requirements will be met'' (Sec.  570.34(d)). If an inmate refuses to 
participate in drug treatment, withdraws, or is removed from drug 
treatment, the inmate does not demonstrate the level of responsibility 
necessary to qualify for a furlough.
    Additionally, the Bureau has similar disincentives in the literacy 
program: Sec.  544.74 provides that inmates who do not participate as 
required in the literacy program may not earn incentive pay or receive 
special work assignments. Similarly, the disincentives provided in 
Sec.  550.53(h)(1), work with the incentives described above to 
maximize encouragement of inmates to participate in drug abuse 
treatment as necessary.

The 2004 Proposed Rule

    The 2004 proposed rule streamlined and clarified the regulations on 
the drug abuse treatment program, eliminating unnecessary text and 
obsolete language and removing internal agency procedures that need not 
be in rules text.
    In this rule, we added escape and attempted escape to the list of 
reasons an inmate may be expelled from the Residential Drug Abuse 
Treatment Program (RDAP). We also clarified language describing 
``withdrawal/expulsion'' by reorganizing and breaking block paragraphs 
into smaller subdivisions. Essentially, inmates will be removed from 
RDAP for the reasons given in Sec.  550.53(g) because allowing the 
participation of inmates who commit serious prohibited acts involving 
the use of alcohol or drugs, violence or threats of violence, escape or 
attempted escape, or any of the highest severity (100-level series) 
prohibited acts, would undermine the spirit and intent of the Bureau's 
drug abuse treatment programs, minimize the seriousness of these 
offenses, and threaten the safety, security, and good order of the 
institution.
    Further, the commission of these types of prohibited acts is a 
violation of the trust given to inmates who are admitted into RDAP. An 
inmate who is found to have committed any of these prohibited acts 
demonstrates a propensity to impede or disrupt not only his/her own 
progress in overcoming a drug abuse problem, but, potentially, the 
progress of other inmates who are making a true effort to succeed in 
the program. Providing such consequences for these types of prohibited 
acts would be greater disincentive to commit such acts.
    Also in the 2004 proposed rule, we (1) deleted obsolete language, 
(2) added as ineligible for early release inmates with a prior felony 
or misdemeanor conviction for arson or kidnaping, and (3) clarified 
that inmates cannot earn an early release twice.
    Title 18 U.S.C. 3621(e) provides the Director of the Bureau of 
Prisons the discretion to grant an early release of up to one year upon 
the successful completion of a residential drug abuse treatment 
program. The regulation [550.55(b)(4)(i)-(vii)] provides that an inmate 
who has a prior misdemeanor or felony conviction for homicide, forcible 
rape, robbery, aggravated assault, arson, kidnaping, or child sexual 
abuse will not be eligible for early release.
    In exercising the Director's statutory discretion, we considered 
the crimes of homicide, forcible rape, robbery, aggravated assault, 
arson, and kidnaping, as identified in the FBI's Uniform Crime 
Reporting Program (UCR), which is a collective effort of city, county, 
state, tribal, and federal law enforcement agencies to present a 
nationwide view on crime. The definitions of these terms were developed 
for the National Incident-Based Reporting System and are identified in 
the UCR due to their inherently violent nature and particular 
dangerousness to the public.
    The Director of the Bureau exercises discretion to deny early 
release eligibility to inmates who have a prior felony or misdemeanor 
conviction for these offenses because commission of such offenses 
rationally reflects the view that such inmates displayed readiness to 
endanger the public.
    Likewise, we also deny early release eligibility to inmates who 
have a prior felony or misdemeanor conviction for an offense that 
involves sexual abuse committed against minors. Like the offenses 
identified in the UCR, sexual abuse offenses committed against minors 
exhibit a particular dangerousness to the public and often entail 
violent or threatening elements that resonate with victims and the 
community as a whole. Because of this, the Director has chosen to use 
his discretion to exclude offenders of these offenses from early 
release consideration.
    The Director's rationale was mirrored by the enactment of the Adam 
Walsh Child Protection and Safety Act of 2006 (Walsh Act). The Walsh 
Act specifically expanded the definition of ``sex offense'' to include 
``a criminal offense that is a specified offense against a minor'' and 
to include all offenses by ``child predators.'' Public Law 109-248, 
section 111, 120 Stat. 587, 591-92 (2006). The Walsh Act also expanded 
the National Sex Offender Registry by integrating the information in 
state sex offender registry systems to ensure that law enforcement has 
access to the same information across the United States. Section 113, 
120 Stat. at 593-94; see also 2006 U.S.C.C.A.N. S35, S36. This 
evidences the intent of Congress to encompass any offense relating to 
minors that involves sexual conduct, and to limit public exposure, 
including early release opportunities, to inmates found to have these 
types of offenses in their backgrounds. We therefore deny early release 
eligibility to such inmates in conformance with Congressional intent 
and recognition of the seriousness of such offenses.
    Also, in the new rule, we added language to exempt from early 
release consideration inmates who previously earned early release under 
18 U.S.C. 3621(e) for the following reasons: As we stated in the 
preamble to the 2004 rule, Congress created the early release incentive 
to motivate drug-addicted inmates to enter residential drug abuse 
treatment who would not do so without this incentive. However, in our 
discretion, it is not appropriate to provide this incentive for inmates 
who completed RDAP, gained early release, but failed to remain drug and 
crime free. To provide this incentive to the same inmate twice would be 
counter to our drug treatment philosophy that inmates must be held 
accountable for their actions when released to the community. Allowing 
inmates the opportunity to receive early release twice would undermine 
the seriousness of the inmate's offense, and essentially benefit 
recidivists.

[[Page 1895]]

    It is arguable that recidivists have additional needs for drug 
abuse treatment programming. We therefore note that such inmates may 
still receive drug treatment, even if they have already been through 
the Bureau's programs and received early release. This provision does 
not prevent an inmate from receiving further treatment programming. It 
simply removes early release as an incentive for further treatment.

Comments on the 2004 Proposed Rule

    Award time off up to a year. One commenter recommended that the 
Bureau should, instead of giving a year off, award time off up to a 
year based on the inmate's level of dedication to their sobriety, as 
determined by a council consisting of the local DAP Coordinator and 
specialists.
    In fact, we award time off of ``up to'' a year, based on several 
factors, including the inmate's level of dedication to sobriety. Title 
18 U.S.C. 3621(e)(2)(B) gives the Bureau the discretion to reduce the 
period of incarceration for an inmate who successfully completes the 
drug abuse treatment program, but ``such reduction may not be more than 
one year.'' In Sec.  550.55(c), we have chosen to exercise this 
discretion by awarding early release based on successful completion of 
the program, the length of sentence imposed by the Court, and 
fulfillment of the inmate's community-based treatment obligations by 
the presumptive release date.
    In Sec.  550.55(c)(2), we add language explaining that, under the 
Director's discretion allowed by 18 U.S.C. 3621(e), we may limit early 
release based upon the length of sentence imposed by the Court. We add 
this provision to adhere to the Court's intent in determining the 
length of the sentence. An early release of a substantial period of 
time (e.g., twelve months) for relatively short sentences would 
diminish the seriousness of the offense and unduly undercut the 
sentencing court's punitive intent, as manifested in the length of the 
sentence imposed.
    Also, as part of a general review undertaken to measure successful 
completion of the treatment program, the Bureau takes into 
consideration the inmate's ``level of dedication to their sobriety,'' 
and the determination of successful completion of the treatment program 
is made by the local DAP coordinator and other specialists, just as the 
commenter recommends.
    Allowing all inmates to participate in drug treatment. The second 
commenter recommended that all inmates, not just those qualifying under 
our early release regulation, be allowed to participate in the drug 
abuse treatment program and be eligible for and receive a year off.
    Title 18 U.S.C. 3621(e) only authorizes the Bureau to extend drug 
abuse treatment participation and eligibility for early release to 
inmates with ``a substance abuse problem,'' not to all inmates. 
Although, by statute, inmates without a substance abuse problem may not 
have the opportunity for early release consideration, Sec.  550.52 
allows all inmates to participate in non-residential drug abuse 
treatment services. In the new rule, we remove several pre-existing 
eligibility requirements for the program to make it more inclusive.
    Early release eligibility of inmates convicted of an offense 
involving a firearm. The second commenter also recommended that Sec.  
550.55(b)(5)(ii) be altered so that inmates convicted of an offense 
that involved the carrying or possession (but not use) of a firearm or 
other dangerous weapon or explosives would be eligible for early 
release consideration. The commenter further recommended that Sec.  
550.55(b)(5)(iii) be deleted, granting eligibility for early release 
consideration to inmates convicted of an offense that, by its nature or 
conduct, presents a serious potential risk of physical force against 
the person or property of another.
    Under 18 U.S.C. 3621(e), the Bureau has the discretion to determine 
eligibility for early release consideration (See Lopez v. Davis, 531 
U.S. 230 (2001)). The Director of the Bureau exercises discretion to 
deny early release eligibility to inmates who have a felony conviction 
for the offenses listed in Sec.  550.55(b)(5)(i)-(iv) because 
commission of such offenses illustrates a readiness to endanger the 
public. Denial of early release to all inmates convicted of these 
offenses rationally reflects the view that, in committing such 
offenses, these inmates displayed a readiness to endanger another's 
life.
    The Director of the Bureau, in his discretion, chooses to preclude 
from early release consideration inmates convicted of offenses 
involving carrying, possession or use of a firearm and offenses that 
present a serious risk of physical force against person or property, as 
described in Sec.  550.55(b)(5)(ii) and (iii). Further, in the 
correctional experience of the Bureau, the offense conduct of both 
armed offenders and certain recidivists suggests that they pose a 
particular risk to the public. There is a significant potential for 
violence from criminals who carry, possess or use firearms. As the 
Supreme Court noted in Lopez v. Davis, ``denial of early release to all 
inmates who possessed a firearm in connection with their current 
offense rationally reflects the view that such inmates displayed a 
readiness to endanger another's life.'' Id. at 240. The Bureau adopts 
this reasoning. The Bureau recognizes that there is a significant 
potential for violence from criminals who carry, possess or use 
firearms while engaged in felonious activity. Thus, in the interest of 
public safety, these inmates should not be released months in advance 
of completing their sentences.
    It is important to note that these inmates are not precluded from 
participating in the drug abuse treatment program. However, these 
inmates are not eligible for early release consideration because the 
specified elements of these offenses pose a significant threat of 
dangerousness or violent behavior to the public. This threat presents a 
potential safety risk to the public if inmates who have demonstrated 
such behavior are released to the community prematurely. Also, early 
release would undermine the seriousness of these offenses as reflected 
by the length of the sentence which the court deemed appropriate to 
impose.
    The 2006 proposed rule. The proposed rule published in 2006 
modified Sec.  550.55(a) from the 2004 proposed rule to state that 
inmates may be eligible for early release by a period not to exceed 
twelve months if they were sentenced to a term of imprisonment under 
either 18 U.S.C. Chapter 227, Subchapter D for a nonviolent offense, or 
D.C. Code Sec.  24-403.01 for a nonviolent offense, meaning an offense 
other than those in D.C. Code Sec.  23-1331(4). There was no further 
change to the provisions in the 2004 rule.
    The National Capital Revitalization and Self-Government Improvement 
Act of 1997, approved August 5, 1997, (Pub. L. 105-33; 111 Stat. 740) 
(``Revitalization Act'') dictates that D.C. Code felony offenders 
``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, and the Bureau of Prisons shall be responsible 
for the custody, care, subsistence, education, treatment and training 
of such persons.'' D.C. Code Sec.  24-101(b). Therefore, as with 
federal offenders, it is also within the Director's discretion, as 
provided by 18 U.S.C. 3621(e), to determine D.C. Code felony offenders' 
eligibility for early release according to the same criteria used for 
federal offenders.

[[Page 1896]]

Comments on the 2006 Proposed Rule

    We received three comments to the 2006 proposed rule. One was in 
support of the regulation. We address issues raised by the other two 
commenters below.
    One commenter was concerned that there existed ``literal disparity 
between the regulation as proposed and the plain language'' of the D.C. 
Code, suggesting that Sec.  550.55(a)(1)(ii) ``track the statutory 
language of D.C. Code section 24-403.01(d)(2) so as to prevent any 
current and more likely future conflict and confusion.''
    Section 550.55(a)(1)(ii) states that inmates may be eligible for 
early release by a period not to exceed twelve months if they were 
sentenced to a term of imprisonment ``under D.C. Code Sec.  24-403.01 
for a nonviolent offense, meaning an offense other than those in D.C. 
Code Sec.  23-1331(4).'' D.C. Code Sec.  23-1331(4) begins with the 
phrase ``(4) The term `crime of violence' means'' and then lists crimes 
that would constitute crimes of violence.
    The Bureau's regulation language at Sec.  550.55(a)(1)(ii) is 
``offense other than those in D.C. Code Sec.  23-1331(4).'' The 
commenter wishes us to change this to ``offense other than those 
included within the definition of `crime of violence' in D.C. Code 
Sec.  23-1331(4),'' to more closely track the language of D.C. Code 
Sec.  24-403.01. We have changed this language accordingly.
    The second commenter was concerned that ``[a]llowing the DC [sic] 
Superior Court inmates to get time off will only increase the number of 
serious attitude inmates in the program. These will be additional 
inmates who will not be expelled from the program for misconduct or 
lack of programming because it will mess up the statistics.''
    While the Revitalization Act authorizes the Bureau to expand the 
early release option to include D.C. Code felony offenders in Bureau 
custody, eligibility for participation in the Bureau's drug abuse 
treatment programs remains the same. In other words, any inmate with a 
verified substance use disorder (Sec.  550.53(b)(1)) can be placed on 
the waiting list to receive drug treatment, but they will not receive 
early release unless they are eligible for that incentive. D.C. Code 
felony offenders are now eligible under the statute to receive early 
release for participation in drug treatment. Therefore, this regulation 
will result in D.C. Code felony offenders having a greater incentive 
for participation because of the new applicability of the early release 
option. For that reason, the number of D.C. Code felony offenders 
eligible for participation in the program may increase, but despite 
that, the Bureau does not anticipate significant change to any 
misconduct in the program or increase in other issues related to the 
program.
    The Revitalization Act dictates that D.C. Code felony offenders 
``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, and the Bureau of Prisons shall be responsible 
for the custody, care, subsistence, education, treatment and training 
of such persons.'' D.C. Code section 24-101(b).
    D.C. Code Sec.  24-403.01(d-1), amended on May 24, 2005, states 
that D.C. Code felony offenders sentenced under D.C. Code Sec.  24-
403.01 for a nonviolent offense are eligible for early release 
consideration in accordance with 18 U.S.C. 3621(e)(2). Accordingly, the 
Director now extends early release eligibility pursuant to 18 U.S.C. 
3621(e)(2) to D.C. Code felony offenders for successful completion of 
the RDAP.

Second Chance Act Changes

    The Second Chance Act of 2007, approved April 9, 2008, (Pub. L. 
110-199; 122 Stat. 657) (``Second Chance Act''), section 231(a)(2)(A), 
states that, ``incentives for a prisoner who participates in reentry 
and skills development programs * * * may, at the discretion of the 
Director, include * * * the maximum allowable period in a community 
confinement facility.'' Further, section 251 of the Second Chance Act 
amends 18 U.S.C. 3624(c) to require that the Director must, ``to the 
extent practicable, ensure that a prisoner serving a term of 
imprisonment spends a portion of the final months of that term (not to 
exceed twelve months), under conditions that will afford the prisoner a 
reasonable opportunity to adjust to and prepare for the reentry of that 
prisoner into the community.''
    The Second Chance Act, section 251, also amends 18 U.S.C. 
3624(c)(6) to require the Bureau to issue regulations reflecting these 
provisions ``not later than 90 days after the date of the enactment of 
the Second Chance Act of 2007 * * *.'' In compliance with the Second 
Chance Act requirement regarding the timely issuance of revised 
regulations, we make the following two changes to the final regulation 
text. Both of these changes will be beneficial to inmates, as they will 
allow the Bureau to consider potentially longer periods of community 
confinement than previously contemplated by these regulations.
    First, we remove a reference in Sec.  550.53(h)(1)(ii) which stated 
that an inmate who is expelled from the RDAP, withdraws from the RDAP, 
or refuses to participate, is not eligible for ``[m]ore than 90 days 
community-based program placement.'' Because section 251 of the Second 
Chance Act contemplates a maximum allowable time of up to twelve 
months, we add a new provision (subparagraph (2)) which states that 
refusal, withdrawal, and/or expulsion will be a factor to consider in 
determining length of community confinement. This conforms with the 
Second Chance Act, section 231 (a)(2)(A). We also make a conforming 
change to remove Sec.  550.51(e)(1)(iii), which lists ineligibility for 
``community programs'' as a consequence of non-participation in the 
drug abuse treatment course. The possibility of community confinement 
is a strong motivation for inmates to participate in drug treatment 
programs, as emphasized by several inmate comments to the previous 
proposed rules. Conversely, having a limitation imposed on community 
confinement as a possible consequence would strongly deter inmates from 
negative behavior which could jeopardize the effectiveness of their 
drug treatment.
    Second, we remove a parenthetical reference in Sec.  
550.54(a)(1)(ii) which states that the ``maximum period of time'' 
allowable ``in a community-based treatment program'' is 180 days. This 
reference also conflicted with section 251 of the Second Chance Act, as 
explained above.
    Additionally, section 252 of the Second Chance Act amended 18 
U.S.C. 3621(e)(5)(A) to describe residential drug abuse treatment as 
``a course of individual and group activities and treatment, lasting at 
least 6 months * * *.'' Section 252 therefore authorizes the Bureau to 
offer a residential drug abuse treatment course lasting ``at least six 
months,'' but leaves it in the discretion of the Director whether to 
expand it beyond six months. We therefore alter Sec.  550.53 (a)(1) to 
conform to the specific language of the Second Chance Act. That 
regulation will reflect that the unit-based component of the 
residential drug abuse treatment program should last for ``at least six 
months.''

Technical Change

    We make one minor change to Sec.  550.51, regarding drug abuse 
education course placement. In Sec.  550.51(b)(3)(iii), we previously 
indicated that inmates may not be considered for course placement if 
they complete a structured drug abuse

[[Page 1897]]

treatment program at one of the Bureau's Intensive Confinement Centers 
(ICC). However, we published a final rule on July 11, 2008 (73 FR 
39863) which removed Bureau rules on the intensive confinement center 
program (ICC). The ICC was a specialized program for non-violent 
offenders combining features of a military boot camp with traditional 
Bureau correctional values. Discontinuing this program was a decision 
made as part of an overall strategy to eliminate programs that do not 
reduce recidivism. Because the Bureau is no longer offering the ICC 
program (also known as Shock Incarceration or Boot Camp) to inmates as 
a program option, we remove it from the list of reasons that render 
inmates ineligible for the drug abuse treatment course.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation. The Director, Bureau of Prisons has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), and accordingly this rule has been 
reviewed by the Office of Management and Budget.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Under Executive Order 13132, this rule 
does not have sufficient federalism implications for which we would 
prepare 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. By 
approving it, the Director certifies that it will not have a 
significant economic impact upon a substantial number of small entities 
because: This rule is about 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 cause State, local and tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not significantly or uniquely affect small governments. We do 
not need to take action under the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

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

List of Subjects

28 CFR Part 545

    Employment, Prisoners.

28 CFR Part 550

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
Under the 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 545 and 550 as follows:

PART 545--WORK AND COMPENSATION

0
1. The authority citation for 28 CFR part 545 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3572, 3621, 3622, 
3624, 3663, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 4126, 5006-5024 (Repealed 
October 12, 1984 as to offenses committed after that date), 5039; 28 
U.S.C. 509, 510.


0
2. In Sec.  545.25, revise paragraph (d) to read as follows:


Sec.  545.25  Eligibility for performance pay.

* * * * *
    (d) An inmate who refuses participation, withdraws, is expelled, or 
otherwise fails attendance requirements of the drug abuse education 
course or the RDAP is subject to the limitations specified in Sec.  
550.51(e) or Sec.  550.53(g) of this chapter.
* * * * *

PART 550--DRUG PROGRAMS

0
3. The authority citation for part 550 is revised to read as follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 
4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984 as to offenses committed after that date), 5039; 21 U.S.C. 
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 
U.S.C. Chapter 223).

Subpart F--Drug Abuse Treatment Program

0
4. Revise Subpart F to read as follows:

Sec.
550.50 Purpose and scope.
550.51 Drug abuse education course.
550.52 Non-residential drug abuse treatment services.
550.53 Residential Drug Abuse Treatment Program (RDAP).
550.54 Incentives for RDAP participation.
550.55 Eligibility for early release.
550.56 Community Transitional Drug Abuse Treatment Program (TDAT).
550.57 Inmate appeals.


Sec.  550.50  Purpose and scope.

    The purpose of this subpart is to describe the Bureau's drug abuse 
treatment programs. All Bureau institutions have a drug abuse treatment 
specialist who, under the Drug Abuse Program Coordinator's supervision, 
provides drug abuse education and non-residential drug abuse treatment 
services to the inmate population. Institutions with residential drug 
abuse treatment programs (RDAP) should have additional drug abuse 
treatment specialists to provide treatment services in the RDAP unit.


Sec.  550.51  Drug abuse education course.

    (a) Purpose of the drug abuse education course. All institutions 
provide a drug abuse education course to:
    (1) Inform inmates of the consequences of drug/alcohol abuse and 
addiction; and
    (2) Motivate inmates needing drug abuse treatment to apply for 
further drug abuse treatment, both while incarcerated and after 
release.
    (b) Course placement. (1) Inmates will get primary consideration 
for course placement if they were sentenced or returned to custody as a 
violator after September 30, 1991, when unit and/or drug abuse 
treatment staff determine, through interviews and file review that:
    (i) There is evidence that alcohol or other drug use contributed to 
the commission of the offense;
    (ii) Alcohol or other drug use was a reason for violation either of 
supervised release (including parole) or Bureau community status;
    (iii) There was a recommendation (or evaluation) for drug 
programming during incarceration by the sentencing judge; or

[[Page 1898]]

    (iv) There is evidence of a history of alcohol or other drug use.
    (2) Inmates may also be considered for course placement if they 
request to participate in the drug abuse education program but do not 
meet the criteria of paragraph (b)(1) of this section.
    (3) Inmates may not be considered for course placement if they:
    (i) Do not have enough time remaining to serve to complete the 
course; or
    (ii) Volunteer for, enter or otherwise complete a RDAP.
    (c) Consent. Inmates will only be admitted to the drug abuse 
education course if they agree to comply with all Bureau requirements 
for the program.
    (d) Completion. To complete the drug abuse education course, 
inmates must attend and participate during course sessions and pass a 
final course exam. Inmates will ordinarily have at least three chances 
to pass the final course exam before they lose privileges or the 
effects of non-participation occur (see paragraph (e) of this section).
    (e) Effects of non-participation. (1) If inmates considered for 
placement under paragraph (b)(1) of this section refuse participation, 
withdraw, are expelled, or otherwise fail to meet attendance and 
examination requirements, such inmates:
    (i) Are not eligible for performance pay above maintenance pay 
level, or for bonus pay, or vacation pay; and
    (ii) Are not eligible for a Federal Prison Industries work program 
assignment (unless the Warden makes an exception on the basis of work 
program labor needs).
    (2) The Warden may make exceptions to the provisions of this 
section for good cause.


Sec.  550.52  Non-residential drug abuse treatment services.

    All institutions must have non-residential drug abuse treatment 
services, provided through the institution's Psychology Services 
department. These services are available to inmates who voluntarily 
decide to participate.


Sec.  550.53  Residential Drug Abuse Treatment Program (RDAP).

    (a) RDAP. To successfully complete the RDAP, inmates must complete 
each of the following components:
    (1) Unit-based component. Inmates must complete a course of 
activities provided by drug abuse treatment specialists and the Drug 
Abuse Program Coordinator in a treatment unit set apart from the 
general prison population. This component must last at least six 
months.
    (2) Follow-up services. If time allows between completion of the 
unit-based component of the RDAP and transfer to a community-based 
program, inmates must participate in the follow-up services to the 
unit-based component of the RDAP.
    (3) Transitional drug abuse treatment (TDAT) component. Inmates who 
have completed the unit-based program and (when appropriate) the 
follow-up treatment and are transferred to community confinement must 
successfully complete community-based drug abuse treatment in a 
community-based program to have successfully completed RDAP. The 
Warden, on the basis of his or her discretion, may find an inmate 
ineligible for participation in a community-based program.
    (b) Admission criteria. Inmates must meet all of the following 
criteria to be admitted into RDAP.
    (1) Inmates must have a verifiable substance use disorder.
    (2) Inmates must sign an agreement acknowledging program 
responsibility.
    (3) When beginning the program, the inmate must be able to complete 
all three components described in paragraph (a) of this section.
    (c) Application to RDAP. Inmates may apply for the RDAP by 
submitting requests to a staff member (ordinarily, a member of the unit 
team or the Drug Abuse Program Coordinator).
    (d) Referral to RDAP. Inmates will be identified for referral and 
evaluation for RDAP by unit or drug treatment staff.
    (e) Placement in RDAP. The Drug Abuse Program Coordinator decides 
whether to place inmates in RDAP based on the criteria set forth in 
paragraph (b) of this section.
    (f) Completing the unit-based component of RDAP. To complete the 
unit-based component of RDAP, inmates must:
    (1) Have satisfactory attendance and participation in all RDAP 
activities; and
    (2) Pass each RDAP testing procedure. Ordinarily, we will allow 
inmates who fail any RDAP exam to retest one time.
    (g) Expulsion from RDAP. (1) Inmates may be removed from the 
program by the Drug Abuse Program Coordinator because of disruptive 
behavior related to the program or unsatisfactory progress in 
treatment.
    (2) Ordinarily, inmates must be given at least one formal warning 
before removal from RDAP. A formal warning is not necessary when the 
documented lack of compliance with program standards is of such 
magnitude that an inmate's continued presence would create an immediate 
and ongoing problem for staff and other inmates.
    (3) Inmates will be removed from RDAP immediately if the Discipline 
Hearing Officer (DHO) finds that they have committed a prohibited act 
involving:
    (i) Alcohol or drugs;
    (ii) Violence or threats of violence;
    (iii) Escape or attempted escape; or
    (iv) Any 100-level series incident.
    (4) We may return an inmate who withdraws or is removed from RDAP 
to his/her prior institution (if we had transferred the inmate 
specifically to participate in RDAP).
    (h) Effects of non-participation. (1) If inmates refuse to 
participate in RDAP, withdraw, or are otherwise removed, they are not 
eligible for:
    (i) A furlough (other than possibly an emergency furlough);
    (ii) Performance pay above maintenance pay level, bonus pay, or 
vacation pay; and/or
    (iii) A Federal Prison Industries work program assignment (unless 
the Warden makes an exception on the basis of work program labor 
needs).
    (2) Refusal, withdrawal, and/or expulsion will be a factor to 
consider in determining length of community confinement.
    (3) Where applicable, staff will notify the United States Parole 
Commission of inmates' needs for treatment and any failure to 
participate in the RDAP.


Sec.  550.54  Incentives for RDAP participation.

    (a) An inmate may receive incentives for his or her satisfactory 
participation in the RDAP. Institutions may offer the basic incentives 
described in paragraph (a)(1) of this section. Bureau-authorized 
institutions may also offer enhanced incentives as described in 
paragraph (a)(2) of this section.
    (1) Basic incentives. (i) Limited financial awards, based upon the 
inmate's achievement/completion of program phases.
    (ii) Consideration for the maximum period of time in a community-
based treatment program, if the inmate is otherwise eligible.
    (iii) Local institution incentives such as preferred living 
quarters or special recognition privileges.
    (iv) Early release, if eligible under Sec.  550.55.
    (2) Enhanced incentives. (i) Tangible achievement awards as 
permitted by the Warden and allowed by the regulations governing 
personal property (see 28 CFR part 553).
    (ii) Photographs of treatment ceremonies may be sent to the 
inmate's family.
    (iii) Formal consideration for a nearer release transfer for medium 
and low security inmates.

[[Page 1899]]

    (b) An inmate must meet his/her financial program responsibility 
obligations (see 28 CFR part 545) and GED responsibilities (see 28 CFR 
part 544) before being able to receive an incentive for his/her RDAP 
participation.
    (c) If an inmate withdraws from or is otherwise removed from RDAP, 
that inmate may lose incentives he/she previously achieved.


Sec.  550.55  Eligibility for early release.

    (a) Eligibility. Inmates may be eligible for early release by a 
period not to exceed twelve months if they:
    (1) Were sentenced to a term of imprisonment under either:
    (i) 18 U.S.C. Chapter 227, Subchapter D for a nonviolent offense; 
or
    (ii) D.C. Code Sec.  24-403.01 for a nonviolent offense, meaning an 
offense other than those included within the definition of ``crime of 
violence'' in D.C. Code Sec.  23-1331(4); and
    (2) Successfully complete a RDAP, as described in Sec.  550.53, 
during their current commitment.
    (b) Inmates not eligible for early release. As an exercise of the 
Director's discretion, the following categories of inmates are not 
eligible for early release:
    (1) Immigration and Customs Enforcement detainees;
    (2) Pretrial inmates;
    (3) Contractual boarders (for example, State or military inmates);
    (4) Inmates who have a prior felony or misdemeanor conviction for:
    (i) Homicide (including deaths caused by recklessness, but not 
including deaths caused by negligence or justifiable homicide);
    (ii) Forcible rape;
    (iii) Robbery;
    (iv) Aggravated assault;
    (v) Arson;
    (vi) Kidnaping; or
    (vii) An offense that by its nature or conduct involves sexual 
abuse offenses committed upon minors;
    (5) Inmates who have a current felony conviction for:
    (i) An offense that has as an element, the actual, attempted, or 
threatened use of physical force against the person or property of 
another;
    (ii) An offense that involved the carrying, possession, or use of a 
firearm or other dangerous weapon or explosives (including any 
explosive material or explosive device);
    (iii) An offense that, by its nature or conduct, presents a serious 
potential risk of physical force against the person or property of 
another; or
    (iv) An offense that, by its nature or conduct, involves sexual 
abuse offenses committed upon minors;
    (6) Inmates who have been convicted of an attempt, conspiracy, or 
other offense which involved an underlying offense listed in paragraph 
(b)(4) and/or (b)(5) of this section; or
    (7) Inmates who previously received an early release under 18 
U.S.C. 3621(e).
    (c) Early release time-frame. (1) Inmates so approved may receive 
early release up to twelve months prior to the expiration of the term 
of incarceration, except as provided in paragraphs (c)(2) and (3) of 
this section.
    (2) Under the Director's discretion allowed by 18 U.S.C. 3621(e), 
we may limit the time-frame of early release based upon the length of 
sentence imposed by the Court.
    (3) If inmates cannot fulfill their community-based treatment 
obligations by the presumptive release date, we may adjust provisional 
release dates by the least amount of time necessary to allow inmates to 
fulfill their treatment obligations.


Sec.  550.56  Community Transitional Drug Abuse Treatment Program 
(TDAT).

    (a) For inmates to successfully complete all components of RDAP, 
they must participate in TDAT in the community. If inmates refuse or 
fail to complete TDAT, they fail the RDAP and are disqualified for any 
additional incentives.
    (b) Inmates with a documented drug abuse problem who did not choose 
to volunteer for RDAP may be required to participate in TDAT as a 
condition of participation in a community-based program, with the 
approval of the Transitional Drug Abuse Program Coordinator.
    (c) Inmates who successfully complete RDAP and who participate in 
transitional treatment programming at an institution must participate 
in such programming for at least one hour per month.


Sec.  550.57  Inmate appeals.

    Inmates may seek formal review of complaints regarding the 
operation of the drug abuse treatment program by using administrative 
remedy procedures in 28 CFR part 542.

 [FR Doc. E9-593 Filed 1-13-09; 8:45 am]
BILLING CODE 4410-05-P


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