Federal Register / Vol. 87, No. 118 / Tuesday, June 21, 2022 / Proposed Rules 36787 

information that you do not wish to be 

made publicly available, submit your 

comments only as a written/paper 

submission. You should submit two 

copies total. One copy will include the 

information you claim to be confidential 

with a heading or cover note that states 

‘‘THIS DOCUMENT CONTAINS 

CONFIDENTIAL INFORMATION.’’ The 

Agency will review this copy, including 

the claimed confidential information, in 

its consideration of comments. The 

second copy, which will have the 

claimed confidential information 

redacted/blacked out, will be available 

for public viewing and posted on 

https://www.regulations.gov. Submit 

both copies to the Dockets Management 

Staff. If you do not wish your name and 

contact information to be made publicly 

available, you can provide this 

information on the cover sheet and not 

in the body of your comments and you 

must identify this information as 

‘‘confidential.’’ Any information marked 

as ‘‘confidential’’ will not be disclosed 

except in accordance with 21 CFR 10.20 

and other applicable disclosure law. For 

more information about FDA’s posting 

of comments to public dockets, see 80 

FR 56469, September 18, 2015, or access 

the information at: https://

www.govinfo.gov/content/pkg/FR-2015- 

09-18/pdf/2015-23389.pdf. 

Docket: For access to the docket to 

read background documents or the 

electronic and written/paper comments 

received, go to https://

www.regulations.gov and insert the 

docket number, found in brackets in the 

heading of this document, into the 

‘‘Search’’ box and follow the prompts 

and/or go to the Dockets Management 

Staff, 5630 Fishers Lane, Rm. 1061, 

Rockville, MD 20852, 240–402–7500. 

FOR FURTHER INFORMATION CONTACT: Beth 

Buckler or Nate Mease, Center for 

Tobacco Products, Food and Drug 

Administration, 10903 New Hampshire 

Ave., Silver Spring, MD 20993–0002, 

877–287–1373, CTPRegulations@

fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: In the 

Federal Register of May 4, 2022 (87 FR 

26454 and 87 FR 26396), FDA published 

two proposed rules: (1) a tobacco 

product standard that would prohibit 

menthol as a characterizing flavor in 

cigarettes (‘‘Tobacco Product Standard 

for Menthol in Cigarettes’’; Docket No. 

FDA–2021–N–1349) and (2) a tobacco 

product standard that would prohibit 

characterizing flavors (other than 

tobacco) in all cigars (‘‘Tobacco Product 

Standard for Characterizing Flavors in 

Cigars’’; Docket No. FDA–2021–N– 

1309). Both proposed rules published 

with a 60-day comment period. 

Comments on the proposed rules will 

inform FDA’s rulemakings to establish 

tobacco product standards for menthol 

in cigarettes and characterizing flavors 

in cigars. 

Interested persons were originally 

given until July 5, 2022, to comment on 

the proposed rules. We have received a 

number of requests for a 60-day 

extension of the comment period for 

both proposed rules, which conveyed 

concern that the current 60-day 

comment period does not allow 

sufficient time to develop a meaningful 

response to the proposed rules. Several 

organizations have requested that FDA 

close the comment period after 60 days, 

conveying that 60 days is enough time 

to receive meaningful responses and 

stressed a public health urgency with 

both product standards. 

FDA has considered the requests and 

is extending the comment period for the 

proposed rules by an additional 30 days, 

until August 2, 2022. We believe that a 

90-day comment period is appropriate 

as it allows adequate time for interested 

persons to fully consider the proposed 

rules, including specific requests for 

comments, and develop and submit 

comments without significantly 

lengthening the rulemaking 

proceedings. 

Dated: June 14, 2022. 

Lauren K. Roth, 

Associate Commissioner for Policy. 

[FR Doc. 2022–13209 Filed 6–17–22; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 0 

[BOP Docket No. 1179; AG Order No. 5439– 

2022] 

RIN 1120–AB79 

Home Confinement Under the 

Coronavirus Aid, Relief, and Economic 

Security (CARES) Act 

AGENCY: Office of the Attorney General, 

Department of Justice. 

ACTION: Proposed rule. 

SUMMARY: The Coronavirus Aid, Relief, 

and Economic Security Act (‘‘CARES 

Act’’) authorizes the Director of the 

Bureau of Prisons (‘‘Director’’), during 

the covered emergency period and upon 

a finding by the Attorney General that 

emergency conditions resulting from the 

Coronavirus Disease 2019 (‘‘COVID– 

19’’) pandemic materially affect the 

functioning of the Bureau of Prisons 

(‘‘Bureau’’ or ‘‘BOP’’), to lengthen the 

maximum amount of time for which a 

prisoner may be placed in home 

confinement. This proposed rule affirms 

that the Director has the authority to 

allow prisoners placed in home 

confinement under the CARES Act to 

remain in home confinement after the 

expiration of the covered emergency 

period. 

DATES: Comments are due on or before 

July 21, 2022. 

ADDRESSES: Please submit electronic 

comments through the regulations.gov 

website. In the alternative, written 

comments may be mailed to the Rules 

Unit, Office of General Counsel, Bureau 

of Prisons, 320 First Street NW, 

Washington, DC 20534. 

FOR FURTHER INFORMATION CONTACT: 

Crista Colvin, Office of General Counsel, 

Bureau of Prisons, phone (202) 353– 

4885. 

SUPPLEMENTARY INFORMATION: 

I. Posting of Public Comments 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection online at 

www.regulations.gov. If you want to 

submit personal identifying information 

(such as your name, address, etc.) as 

part of your comment, but do not want 

it to be posted online, you must include 

the phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also locate 

all the personal identifying information 

you do not want posted online in the 

first paragraph of your comment and 

identify what information you want 

redacted. 

If you want to submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify the confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted at 

www.regulations.gov. 

Personal identifying information 

identified and located as set forth above 

will be placed in the agency’s public 

docket file, but not posted online. 

Confidential business information 

identified and located as set forth above 

will not be placed in the public docket 

file, nor will it be posted online. If you 

want to inspect the agency’s public 

docket file in person by appointment, 

please see the FOR FURTHER INFORMATION

CONTACT paragraph. 


jspears on DSK121TN23PROD with PROPOSALS1
36788 Federal Register / Vol. 87, No. 118 / Tuesday, June 21, 2022 / Proposed Rules 

1See Coronavirus Aid, Relief, and Economic 

Security Act, Public Law 116–136, sec. 12003(b)(2), 

134 Stat. 281, 516 (2020) (‘‘CARES Act’’). 

2Proclamation 9994, Declaring a National 

Emergency Concerning the Novel Coronavirus 

Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. 

18, 2020); see also Continuation of the National 

Emergency Concerning the Coronavirus Disease 

2019 (COVID–19) Pandemic, 86 FR 11599 (Feb. 26, 

2021); Continuation of the National Emergency 

Concerning the Coronavirus Disease 2019 (COVID– 

19) Pandemic, 87 FR 10289 (Feb. 23, 2022). 

3Proclamation 9994, Declaring a National 

Emergency Concerning the Novel Coronavirus 

Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. 

13, 2020). 

4U.S. Centers for Disease Control and Prevention, 

Basics of COVID–19 (updated Nov. 4, 2021), 

available at https://www.cdc.gov/coronavirus/2019- 

ncov/your-health/about-covid-19/basics-covid19.html (last visited Apr. 26, 2022). 

5U.S. Centers for Disease Control and Prevention, 

How COVID–19 Spreads (updated July 14, 2021), 

available at https://www.cdc.gov/coronavirus/2019- 

ncov/prevent-getting-sick/how-covid-spreads.html 

(last visited Apr. 26, 2022). 

6U.S. Centers for Disease Control and Prevention, 

Basics of COVID–19 (updated Nov. 4, 2021), 

available at https://www.cdc.gov/coronavirus/2019- 

ncov/your-health/about-covid-19/basics-covid19.html (last visited Apr. 26, 2022). 

7U.S. Centers for Disease Control and Prevention, 

COVID Data Tracker, available at https://

covid.cdc.gov/covid-data-tracker/#datatrackerhome (last visited Apr. 26, 2022). 

II. Discussion 

A. Overview 

The CARES Act authorizes the 

Director of the Bureau of Prisons to 

lengthen the amount of time a prisoner 

may be placed in home confinement 

beyond the statutory maximum 

normally allowed under 18 U.S.C. 

3624(c)(2) as the Director deems 

appropriate.1 That authority under the 

CARES Act exists during the period for 

which there is a declaration of national 

emergency with respect to the COVID– 

19 pandemic and for 30 days after the 

termination of that declaration, 

provided that the Attorney General has 

made a finding that the emergency 

conditions materially affect the 

functioning of the Bureau of Prisons. 

The President declared the COVID–19 

outbreak a national emergency 

beginning March 1, 2020; that national 

emergency was extended on February 

24, 2021, and again on February 18, 

2022, and is still in effect as of June 15, 

2022.2 The Attorney General made the 

relevant finding with respect to the 

Bureau on April 3, 2020. See 

Memorandum for the BOP Director from 

the Attorney General, Re: Increasing Use 

of Home Confinement at Institutions 

Most Affected by COVID–19, at 1 (Apr. 

3, 2020), available at https://

www.bop.gov/coronavirus/docs/bop_

memo_home_confinement_april3.pdf 

(‘‘April 3 Memo’’). 

Following guidance from the Attorney 

General, the Director has exercised his 

discretion under the CARES Act to 

place thousands of inmates in home 

confinement during the pandemic 

emergency. These actions removed 

vulnerable inmates from congregate 

settings where COVID–19 spreads easily 

and quickly and also reduced crowding 

in BOP correctional facilities. Inmates 

placed in home confinement are 

considered in the custody of the Bureau 

and are subject to ongoing supervision, 

including monitoring, drug and alcohol 

testing, and check-in requirements. 

They are not permitted to leave their 

residences except for work or other 

preapproved activities such as 

counseling. Inmates who violate these 

conditions may be disciplined and 

returned to secure custody. Violations of 

the conditions of home confinement 

requiring return have been rare during 

the pandemic emergency, however, and 

very few inmates placed in home 

confinement under the CARES Act have 

committed new crimes. 

Although the CARES Act plainly 

states that the Director’s authority to 

lengthen the maximum period of home 

confinement exists during the covered 

emergency period, the Act is silent 

about what happens to an inmate who 

was placed in home confinement under 

this authority, but who has more than 

the lesser of ten percent of her sentence 

or six months remaining in her term of 

imprisonment after the covered 

emergency period expires. As explained 

in a recent opinion of the Office of Legal 

Counsel (‘‘OLC’’), and supported by the 

interpretation of the Bureau, the statute 

allows such individuals to remain in 

home confinement after the covered 

emergency period ends, as the Director 

deems appropriate. This interpretation 

is supported by the text, structure, and 

purpose of the CARES Act and therefore 

is the better reading of the statute, as 

more fully explained in OLC’s 

December 21, 2021 opinion. See 

Discretion to Continue the HomeConfinement Placements of Federal 

Prisoners After the COVID–19 

Emergency, 45 Op. O.L.C. __(Dec. 21, 

2021), available at https://

www.justice.gov/olc/file/1457926/ 

download (‘‘Home-Confinement 

Placements’’). This interpretation, 

which the Department adopts in 

promulgating this rulemaking, also 

aligns with the Bureau’s consistent 

position that the more appropriate 

reading of the statute is to permit the 

Bureau to conduct individualized 

assessments—as it does in making 

prisoner placements in other contexts— 

to determine whether any inmate 

should be returned to secure custody 

after the COVID–19 emergency ends. 

The Department’s interpretation of the 

statute is also consistent with 

Congressional support for increasing the 

use of home confinement as part of 

reentry programming, as the Second 

Chance Act of 2007 and the First Step 

Act of 2018 demonstrate. In addition, 

implementation of this interpretation is 

operationally sound and provides 

flexibility in managing BOP-operated 

institutions as well as cost savings for 

the Bureau. Indeed, there is evidence 

that the Bureau can appropriately 

manage public safety concerns related to 

inmates in home confinement, and there 

are penological, rehabilitative, and 

societal benefits of allowing inmates to 

effectively prepare for life after the 

conclusion of their criminal sentences. 

Finally, as a practical matter, this 

interpretation permits the Bureau to 

consider whether returning CARES Act 

inmates to secure custody would 

increase crowding in BOP facilities and 

risk new, potentially serious COVID–19 

outbreaks in prisons even after the 

broader national emergency has passed. 

For all of these reasons, the 

Department proposes to provide the 

Director with express authority and 

discretion to allow prisoners who have 

been placed in home confinement under 

the CARES Act to remain in home 

confinement after the conclusion of the 

covered emergency period. 

B. Background 

On March 13, 2020, the President of 

the United States declared that a 

national emergency existed with respect 

to the outbreak of COVID–19, beginning 

on March 1, 2020.3 COVID–19 is caused 

by an extremely contagious virus known 

as SARS–CoV–2 that has spread quickly 

around the world.4 COVID–19 most 

often causes respiratory symptoms, but 

can also attack other parts of the body. 

The virus spreads when an infected 

person breathes out droplets and 

particles, and another person breathes 

in air that contains these droplets and 

particles, or they land on another 

person’s eyes, nose, or mouth.5

Individuals in close contact with an 

infected person—generally less than 6 

feet apart—are most likely to get 

infected. Although COVID–19 often 

presents with mild symptoms, some 

people become severely ill and die.6

Older adults and individuals with 

underlying medical conditions are at 

increased risk of severe illness or death. 

As of April 26, 2022, over 988,000 

people in the United States have died 

from COVID–19.7

The United States Centers for Disease 

Control and Prevention (‘‘CDC’’) within 

the Department of Health and Human 

Services has recognized that the 


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8CDC, Considerations for Modifying COVID–19 

Prevention Measures in Correctional and Detention 

Facilities (June 22, 2021), available at https://

www.cdc.gov/coronavirus/2019-ncov/downloads/ 

community/correction-detention/COVIDCorrections-considerations-for-looseningrestrictions-Webinar.pdf (last visited Apr. 26, 2022). 

9Letter for Attorney General Barr & Director 

Carvajal from Senator Richard J. Durbin et al. (Mar. 

23, 2020), available at https://

www.durbin.senate.gov/imo/media/doc/ 

Letter.%20to%20DOJ%20and%20

BOP%20on%20COVID-19%20and

%20FSA%20provisions%20-

%20final%20bipartisan

%20text%20with%20signature%20blocks.pdf (last 

visited Apr. 26, 2022) (‘‘Conditions of confinement 

do not afford individuals the opportunity to take 

proactive steps to protect themselves, and prisons 

often create the ideal environment for the 

transmission of contagious disease. For these 

reasons, it is important that consistent with the law 

and taking into account public safety and health 

concerns, that the most vulnerable inmates are 

released or transferred to home confinement, if 

possible.’’). 

10Memorandum for the Director, Bureau of 

Prisons from the Attorney General, Re: 

Prioritization of Home Confinement As Appropriate 

in Response to COVID–19 Pandemic (Mar. 26, 

2020), available at https://www.bop.gov/ 

coronavirus/docs/bop_memo_home_

confinement.pdf. 

11PATTERN is a tool that measures an inmate’s 

risk of recidivism and provides her with 

opportunities to reduce her risk score. See, e.g., 

Federal Bureau of Prisons, PATTERN Risk 

Assessment, https://www.bop.gov/inmates/fsa/ 

pattern.jsp. It was created pursuant to the First Step 

Act of 2018. See Pub. L. 115–391, sec. 101(a), 132 

Stat. 5194, 5196–97 (2018). 

12By April 2021, the Bureau clarified that the 

criminal history check covered both an inmate’s 

crime of conviction and her broader criminal 

history. See Memorandum for Chief Executive 

Officers from Andre Matevousian et al., BOP RE: 

Home Confinement (Apr. 13, 2021), available at: 

http://www.bop.gov/foia/docs/ 

Home%20Confinemet%20memo_2021_04_13.pdf. 

13This criterion was later updated to include low 

and minimum PATTERN scores. See id. 

14See FSA, Pub. L. 115–391, sec. 603(a), 132 Stat. 

5194, 5238 (2018), codified at 34 U.S.C. 60541. 

15See FSA sec. 101, 132 Stat. at 5210–13, codified 

at 18 U.S.C. 3624(g). The Bureau recently published 

a final rule codifying Bureau procedures regarding 

time credits that govern pre-release custody 

placements under section 3624(g). See FSA Time 

Credits, 87 FR 2705 (Jan. 19, 2022). 

16CARES Act sec. 12003(b)(2). 

17 Id. sec. 12003(a)(2). 

18See April 3 Memo at 1. 

COVID–19 pandemic presents unique 

challenges for correctional facilities, 

such as those the Bureau manages.8

These challenges include a high risk of 

rapid transmission due to congregate 

living settings, and a high risk of severe 

disease due to the high prevalence of 

pre-existing conditions and risk factors 

associated with severe COVID–19 

illness in prison populations. In a letter 

to the Attorney General and the Director 

dated March 23, 2020, a bipartisan 

group of United States Senators 

expressed concern about the potential 

for COVID–19 spread among, in 

particular, vulnerable Bureau staff and 

inmates, and called upon the Bureau to 

use available statutory authorities to 

increase its utilization of home 

confinement to mitigate the risk.9

On March 26, 2020, the Attorney 

General issued a memorandum 

instructing the Director to prioritize use 

of home confinement, where authorized, 

to protect the health and safety of 

inmates and Bureau staff by minimizing 

the risk of COVID–19 spread in Bureau 

facilities, while continuing to keep 

communities safe.10 The Attorney 

General directed that the determination 

of whether to place an inmate in home 

confinement should be made on an 

individualized basis, taking into 

account the totality of the inmate’s 

circumstances, the statutory 

requirements, and the following nonexhaustive discretionary factors: 

• The age and vulnerability of the 

inmate to COVID–19; 

• The security level of the facility 

housing the inmate, with priority given 

to inmates residing in low and 

minimum security facilities; 

• The inmate’s conduct in prison; 

• The inmate’s risk score under the 

Prisoner Assessment Tool Targeting 

Estimated Risk and Needs 

(‘‘PATTERN’’); 11

• Whether the inmate had a reentry 

plan that would prevent recidivism and 

maximize public safety; and 

• The inmate’s crime of conviction 

and the danger the inmate would pose 

to the community.12

The Attorney General’s memorandum 

explained that some offenses would 

render an inmate ineligible for home 

confinement, and that other serious 

offenses would weigh more heavily 

against consideration for home 

confinement. It further explained that 

inmates who engaged in violent or gangrelated activity while in prison, those 

who incurred a violation within the past 

year, or those with a PATTERN score 

above the ‘‘minimum’’ range would not 

receive priority consideration under the 

memorandum.13

Prior to the passage of the CARES Act, 

Congress had enacted three main 

sources of statutory authority to allow 

the Bureau to place inmates in home 

confinement as part of reentry 

programming. First, 18 U.S.C. 3624(c)(2) 

authorizes the Director to transfer 

inmates to home confinement for the 

shorter of either 10 percent of the term 

of imprisonment or six months. That 

provision also directs the Bureau to 

‘‘place prisoners with lower risk levels 

and lower needs on home confinement 

for the maximum amount of time 

permitted’’ ‘‘to the extent practicable.’’ 

Second, Congress created a pilot 

program in the Second Chance Act of 

2007 (‘‘SCA’’), which it reauthorized 

and modified in the First Step Act of 

2018 (‘‘FSA’’), authorizing the Attorney 

General to place eligible elderly and 

terminally ill offenders in home 

confinement after they have served twothirds of their term of imprisonment.14

Third, the FSA established earned time 

credits that eligible inmates could 

accrue through participating in 

recidivism-reducing programs and then 

apply for transfer to pre-release custody, 

including home confinement, without 

regard for the time frames set forth in 18 

U.S.C. 3624(c)(2).15

The day after the Attorney General’s 

first memorandum, on March 27, 2020, 

the President signed into law the 

CARES Act, which expanded the 

authority of the Director to place 

inmates in home confinement in 

response to the COVID–19 pandemic 

upon a finding by the Attorney General. 

Specifically, the Act states: 

During the covered emergency period, if 

the Attorney General finds that emergency 

conditions will materially affect the 

functioning of the Bureau, the Director of the 

Bureau may lengthen the maximum amount 

of time for which the Director is authorized 

to place a prisoner in home confinement 

under the first sentence of section 3624(c)(2) 

of title 18, United States Code, as the Director 

determines appropriate.16

The term ‘‘covered emergency period’’ 

refers to the period beginning on the 

date the President declared a national 

emergency with respect to COVID–19 

and ending 30 days after the date on 

which the national emergency 

declaration terminates.17

On April 3, 2020, the Attorney 

General issued a second memorandum 

for the Director, finding that emergency 

conditions were materially affecting the 

functioning of the Bureau, and 

acknowledging that the Bureau was 

‘‘experiencing significant levels of 

infection at several of our facilities.’’ 18

The Attorney General instructed the 

Director to use the expanded home 

confinement authority provided in the 

CARES Act to place the most vulnerable 

inmates at the facilities most affected by 

COVID–19 in home confinement, 

following quarantine to prevent the 

spread of COVID–19 into the 

community, and guided by the factors 

set forth in the March 26, 2020 

memorandum. The second 

memorandum made clear that although 

the Bureau should maximize the use of 

home confinement, particularly at 

affected institutions, the Bureau must 

continue to make an individualized 

determination whether home 

confinement is appropriate for each 


jspears on DSK121TN23PROD with PROPOSALS1
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19See, e.g., Memorandum for Chief Executive 

Officers from Andre Matevousian et al., BOP, Re: 

Home Confinement (Nov. 16, 2020), available at 

https://www.bop.gov/foia/docs/Updated_Home_

Confinement_Guidance_20201116.pdf. 

20See Memorandum for Chief Executive Officers 

from Andre Matevousian et al., BOP, Re: Home 

Confinement (Apr. 13, 2021), available at https://

www.bop.gov/foia/docs/ 

Home%20Confinement%20memo_2021_04_13.pdf. 

21See id. 

22See Federal Bureau of Prisons, Frequently 

Asked Questions regarding potential inmate home 

confinement in response to the COVID–19 

pandemic, https://www.bop.gov/coronavirus/faq.jsp 

(last visited Jan. 11, 2022). 

23See id. (last visited Jan. 11, 2022). 

24See 18 U.S.C. 3621(a) (‘‘A person who has been 

sentenced to a term of imprisonment . . . shall be 

committed to the custody of the Bureau of Prisons 

until the expiration of the term imposed . . . .’’). 

25Federal Bureau of Prisons Program Statement 

7320.01, CN–2, Home Confinement (updated Dec. 

15, 2017), available at https://www.bop.gov/policy/ 

progstat/7320_001_CN-2.pdf. 

26The term ‘‘escape with prosecution’’ indicates 

that a United States Attorney’s Office has decided 

to prosecute an inmate for escape under 18 U.S.C. 

751. Where a United States Attorney’s Office does 

not prosecute, BOP imposes administrative 

sanctions. 

inmate considered and must continue to 

act consistently with its obligation to 

preserve public safety. 

The Bureau subsequently issued 

internal guidance that, in addition to 

adopting the criteria in the Attorney 

General’s memoranda, prioritized for 

home confinement inmates who had 

served 50 percent or more of their 

sentences or those who had 18 months 

or less remaining in their sentences and 

had served more than 25 percent of that 

sentence.19 That guidance also 

instructed that pregnant inmates should 

be considered for placement in a 

community program, to include home 

confinement. BOP later clarified that 

inmates with low or minimum 

PATTERN scores qualify equally for 

home confinement, and that the factors 

assessed to ensure inmates are suitable 

for home confinement include verifying 

that an inmate’s current or a prior 

offense was not violent, a sex offense, or 

terrorism-related.20 It further 

implemented a requirement that 

inmates placed in home confinement 

receive instruction about how to protect 

themselves and others from COVID–19 

transmission, based on guidance from 

CDC.21

Since March 2020, following the 

Attorney General’s directive, the Bureau 

has significantly increased the number 

of inmates placed in home confinement 

under the CARES Act and other 

preexisting authorities. Between March 

26, 2020, and January 10, 2022, the 

Bureau placed in home confinement a 

total of 36,809 inmates.22 The majority 

of those inmates have since completed 

their sentences; as of January 10, 2022, 

there were 7,726 inmates in home 

confinement.23 According to the 

Bureau, 4,902 of these inmates were 

placed in home confinement pursuant 

to the CARES Act. 

When an inmate is placed in home 

confinement, he or she is not considered 

released from the custody of the Bureau 

of Prisons; rather, he or she continues 

serving a sentence imposed by a Federal 

court and administered by the Bureau of 

Prisons.24 Although inmates in home 

confinement are transferred from 

correctional facilities and placed in the 

community, they are required to remain 

in the home during specified hours, and 

are permitted to leave only for work or 

other preapproved activities, such as 

occupational training or therapy.25

Inmates in home confinement must 

submit to drug and alcohol testing, and 

counseling requirements. Supervision 

staff monitor inmates’ compliance with 

the conditions of home confinement by 

electronic monitoring equipment or, in 

a few cases for medical or religious 

accommodations, frequent telephone 

and in-person contact. An inmate’s 

failure to comply with the conditions of 

home confinement results in 

disciplinary action, which may include 

a return to secure custody or 

prosecution for escape. 

Management of inmates in home 

confinement since the beginning of the 

COVID–19 pandemic, the largest 

community confinement population in 

recent history, has been robust. 

According to the Bureau, as of March 4, 

2022, a small percentage of inmates 

placed in home confinement pursuant 

to the CARES Act—357 out of 

approximately 9,500 total individuals— 

had been returned to secure custody as 

a result of violations of the conditions 

of home confinement. Of this number, 

only 8 were returned for new criminal 

conduct (6 for drug-related conduct, 1 

for smuggling non-citizens, and 1 for 

escape with prosecution).26 These data 

suggest that inmates placed on longerterm home confinement under the 

CARES Act can be and have been 

successfully managed, with only a 

limited number requiring return to 

secure custody for disciplinary reasons. 

Additional observation and research 

will need to be conducted to determine 

if this very low level of recidivism can 

be maintained, or if it was affected by 

the unique external circumstances 

caused by the global pandemic. 

Many inmates placed in home 

confinement during the COVID–19 

pandemic have reached the end of their 

term of incarceration, or will do so 

within the next six months. However, 

according to the Bureau, as of January 

10, 2022, there were 2,826 total inmates 

placed in home confinement under the 

CARES Act with release dates in more 

than 12 months. Of this total, there were 

2,272 inmates with release dates in 

more than 18 months; 593 inmates with 

release dates in 5 years or more; and 27 

inmates with release dates in 10 years 

or more. Many of these individuals—all 

of whom have been successfully serving 

their sentences in the community—may 

have release dates more than six months 

after the expiration of the covered 

emergency period when it expires, and 

therefore may not then be eligible for 

placement in home confinement under 

18 U.S.C. 3624(c)(2). 

For all the reasons set forth above, the 

Department proposes to promulgate this 

rulemaking under the Attorney 

General’s authority, see 5 U.S.C. 301; 18 

U.S.C. 4001(b)(1), to codify the 

Director’s discretion to allow inmates 

placed in home confinement pursuant 

to the CARES Act to remain in home 

confinement after the covered 

emergency period expires. This 

rulemaking reflects the interpretation of 

the CARES Act set forth in OLC’s 

December 21, 2021 opinion, is 

consistent with recent legislation from 

Congress supporting expanded use of 

home confinement, and advances the 

best interests of inmates and the Bureau 

from penological, rehabilitative, public 

health, and public safety perspectives. 

C. Statutory Authority 

Section 12003(b)(2) of the CARES Act 

authorizes the Director to place inmates 

in home confinement, notwithstanding 

the time limits set forth in 18 U.S.C. 

3624(c)(2), during and for 30 days after 

the termination of the national 

emergency declaration concerning 

COVID–19, provided that the Attorney 

General has made a finding that 

emergency conditions are materially 

affecting BOP’s functioning. By the 

Act’s plain terms, the Director’s 

authority to place an inmate in home 

confinement under the CARES Act 

expires at the end of the covered 

emergency period, or if the Attorney 

General revokes his finding. The Act is 

silent, however, as to whether the 

Director has discretion to determine 

whether specific individuals placed in 

home confinement under the CARES 

Act may remain there after the 

expiration of the covered emergency 

period, or whether all inmates who are 

not eligible for home confinement under 

another authority must be returned to 

secure custody. The Department has 

concluded that the most reasonable 

reading of the CARES Act permits the 

Bureau to continue to make 


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27See 18 U.S.C. 3621(a) (‘‘A person who has been 

sentenced to a term of imprisonment . . . shall be 

committed to the custody of the Bureau of Prisons 

until the expiration of the term imposed . . . .’’). 

28See Home-Confinement Placements, 45 Op. 

O.L.C. __. 

29See id. at *2, *15. 

30See id. at *7–9. 

31CARES Act sec. 12003(b)(2), 134 Stat. at 516. 

32See 18 U.S.C. 3621(a), (b). 

33CARES Act sec. 12003(c)(1), 134 Stat. at 516. 

34See Home Confinement of Federal Prisoners 

After the COVID–19 Emergency, 45 Op. O.L.C. __

(Jan. 15, 2021), available at https://www.justice.gov/ 

olc/file/1355886/download. 

35See id. at *4. 

36See Home-Confinement, 45 Op. O.L.C. __, at *2, 

*5–7. 

37See id. at *4–5. 

individualized determinations about the 

conditions of confinement for inmates 

placed in home confinement under the 

CARES Act, as it does with respect to all 

prisoners,27 following the end of the 

covered emergency period. In its recent 

opinion, OLC concluded that section 

12003(b)(2) does not require the Bureau 

to return to secure custody inmates on 

CARES Act home confinement 

following the end of the covered 

emergency period.28 The Department 

incorporates the analysis from OLC’s 

opinion into the preamble of this notice 

of proposed rulemaking. 

Even if the relevant provision of the 

CARES Act were considered ambiguous, 

however, the Department’s 

interpretation represents a reasonable 

reading that would warrant deference 

under Chevron, U.S.A., Inc. v. Natural 

Resource Defense Council, Inc., 467 U.S. 

837 (1984).29

1. Language and Structure of the 

CARES Act 

As the OLC opinion explains, the 

Department’s reading of the CARES Act 

is grounded in the language of the 

relevant provision, section 

12003(b)(2).30 That section makes a 

single change to the Bureau’s home 

confinement authority—to allow the 

Director to ‘‘lengthen’’ the duration for 

which prisoners can be placed in home 

confinement relative to the maximum 

time periods set forth in 18 U.S.C. 

3624(c)(2).31 Once the Director has 

lengthened a prisoner’s amount of time 

in home confinement under the CARES 

Act and placed the prisoner in home 

confinement, no further action under 

the CARES Act is needed. After the 

placement is made, the Bureau’s 

ongoing management of the inmate is 

further authorized by other Federal 

statutes.32 The CARES Act does not 

mandate that any period of home 

confinement lengthened during the 

covered emergency period must end 

after the expiration of that period. 

This view is reinforced by the 

structure of the CARES Act, and 

particularly by a comparison of section 

12003(b)(2) with the section of the 

CARES Act that immediately follows it. 

That section, 12003(c)(1), provides that: 

During the covered emergency period, if 

the Attorney General finds that emergency 

conditions will materially affect the 

functioning of the Bureau, the Director of the 

Bureau shall promulgate rules regarding the 

ability of inmates to conduct visitation 

through video teleconferencing and 

telephonically, free of charge to inmates, 

during the covered emergency period.33

This section differs from section 

12003(b)(2) in important ways. It uses 

the term ‘‘covered emergency period’’ 

twice, at the beginning and the end of 

the section. The first use establishes that 

the authority of the Bureau of Prisons to 

promulgate rules about video and 

telephonic visitations exists during the 

covered emergency period. The second 

use refers to the requirement that the 

Bureau provide such services, free of 

charge, and suggests that these services 

were required to be provided only 

during the covered emergency period. In 

comparison, section 12003(b)(2) uses 

the term ‘‘covered emergency period’’ at 

the beginning of the section only, 

referring to the time period during 

which the Director may ‘‘lengthen’’ a 

term of home confinement. Section 

12003(b)(2) ends with the phrase ‘‘as the 

Director determines appropriate,’’ 

which explicitly delegates authority to 

the Director to determine the 

appropriate amount to lengthen a period 

of home confinement. 

For all of these reasons, and for the 

additional reasons the operative OLC 

opinion explains in more detail, the 

Department believes that the best 

reading of the CARES Act is that an 

inmate whose period of home 

confinement the Director properly 

lengthened during the covered 

emergency period may remain in home 

confinement, at the Director’s 

discretion, including after the covered 

emergency period ends. 

2. OLC’s Previous Opinion 

The Department recognizes that OLC 

previously advised, in January 2021, 

that the Bureau would be required to 

recall all prisoners placed in home 

confinement under the CARES Act who 

were not otherwise eligible for home 

confinement under 18 U.S.C. 3624(c)(2) 

after the expiration of the covered 

emergency period (or if the Attorney 

General were to revoke his findings).34

At the time of this previous opinion, the 

Bureau was of the view that the 

consequences of its proper exercise of 

discretion to lengthen the maximum 

period of home confinement during the 

covered emergency period could 

continue after the expiration of the 

COVID–19 emergency.35 Even after OLC 

issued this initial opinion, the Bureau’s 

view remained that the stronger 

interpretation of the CARES Act did not 

require all prisoners in CARES Act 

home confinement to be returned to 

secure facilities at the end of the 

covered emergency period.36

The January 2021 OLC opinion based 

its conclusion on three principal 

determinations.37 First, it found that 

because Congress passed the CARES Act 

to provide various forms of temporary 

relief, the Act was best read to limit its 

effects to the covered emergency period. 

Second, it reasoned that Congress must 

have defined the covered emergency 

period to extend 30 days beyond the 

end of the declared national emergency 

in order to provide the Bureau with time 

to return prisoners to secure custody. 

And third, it reasoned that the authority 

‘‘to place’’ a prisoner in home 

confinement required the exercise of 

ongoing legal authority due to the 

Bureau’s frequent interactions with 

inmates in home confinement, and that 

authority would not exist after the 

expiration of the covered emergency 

period. 

But upon the Attorney General’s 

further review of the statutory language, 

and in the face of a growing body of 

evidence demonstrating the success of 

CARES Act home confinement 

placements, the Attorney General 

requested that OLC reconsider its earlier 

opinion. During the course of this 

reconsideration, the Bureau provided 

OLC with additional materials 

supporting its consistent interpretation 

of the CARES Act. The Bureau also 

explained that home confinement 

decisions have historically been made 

on an individualized basis, which 

serves penological goals. OLC 

reexamined the relevant text, structure, 

purpose, and legislative history, along 

with the Bureau’s additional materials 

demonstrating its consistent analysis of 

its own authority, and concluded the 

stronger interpretation of section 

12003(b)(2) was not to require the 

wholesale return of CARES Act inmates 

to secure custody. 

As noted above, see supra Part C.1, 

the current OLC opinion explains the 

textual basis for this view, including the 

absence of a statutory limit on the 

length of CARES Act home-confinement 

placements and the contrast between 

CARES Act sections 12003(b)(2) and 

12003(c)(1). But the current opinion also 

explains the rationale underlying its 


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38See id. at *12. 

39See CARES Act sec. 1102, 134 Stat. at 286–97; 

id. at sec. 1109, 134 Stat. at 304–06. 

40See Home-Confinement Placements, 45 Op. 

O.L.C. __, at *11–12. 

41See id. at *7–9. 

42 18 U.S.C. 4001(b)(1). 

43 5 U.S.C. 301. 

44CARES Act sec. 12003(b)(2), 134 Stat. 516. 

45See, e.g., H.R. Rep. No. 115–699, at 22–24 

(2018) (‘‘The federal prison system needs to be 

reformed through the implementation of corrections 

policy reforms designed to enhance public safety by 

improving the effectiveness and efficiency of the 

federal prison system in order to control corrections 

spending, manage the prison population, and 

reduce recidivism.’’); H.R. Rep. No. 110–140, at 1– 

5 (2007) (‘‘The Second Chance Act will strengthen 

overall efforts to reduce recidivism, increase public 

safety, and help States and communities to better 

address the growing population of ex-offenders 

returning to their communities. The bill focuses on 

development and support of programs that provide 

alternatives to incarceration, expand the availability 

of substance abuse treatment, strengthen families, 

and expand comprehensive re-entry services. The 

bill is a product of multi-year bipartisan 

negotiations and enjoys support from across the 

political spectrum.’’). 

departure from the three principal 

determinations upon which the January 

2021 OLC opinion was grounded. First, 

OLC recognized that the temporary 

nature of many programs created by the 

CARES Act does not require that 

extended home confinement placements 

must end along with the covered 

emergency period for two reasons.38 As 

an initial matter, the extended home 

confinement program is time-limited: 

the Director’s authority to place inmates 

on extended home confinement lapses 

after the expiration of the covered 

emergency period. In addition, the 

consequences of temporary CARES Act 

authorities may extend past the 

emergency period. For example, 

although the authority to provide loans 

under the CARES Act’s Paycheck 

Protection Program was limited, the 

loans granted pursuant to that authority 

will mature over time.39

Second, OLC did not interpret the 30- 

day grace period following the end of 

the national emergency as necessarily 

suggesting that Congress intended the 

Bureau to use that time to return CARES 

Act inmates to secure custody.40 There 

is no legislative history to support such 

a reading, and there are other plausible 

explanations for the grace period, 

including broader forms of 

administrative convenience and benefit, 

such as letting BOP finish processing 

home-confinement placements that 

were in progress and to which BOP had 

already devoted resources. Moreover, 

the 30-day grace period also applies to 

section 12003(c), which provides for 

free video and teleconferencing for 

inmates during the covered emergency 

period. This undercuts the rationale that 

Congress included the 30-day grace 

period for any particular reason other 

than administrative convenience. 

Finally, OLC concluded that the 

appropriate action to focus on in 

determining the meaning of section 

12003(b)(2) is the authority to 

‘‘lengthen’’ the maximum period of 

home confinement, which is a discrete 

act.41 The term ‘‘to place’’ derives from 

a different statute—18 U.S.C. 

3624(c)(2)—and even assuming the act 

of ‘‘placement’’ involves an ongoing 

process, the Bureau fully completes the 

act of ‘‘lengthening’’ the time for which 

an individual may be placed in home 

confinement under the CARES Act 

when an inmate is transferred to home 

confinement under the Act. Once the 

Bureau has appropriately lengthened an 

inmate’s maximum period of home 

confinement under the CARES Act, 

sections 3624(c)(2), 3621(a), and 3621(b) 

provide the Bureau with ongoing 

authority to manage that placement. 

This proposed rule accords with 

OLC’s revised views and codifies the 

Director’s authority to allow inmates 

placed in home confinement under the 

CARES Act to remain in home 

confinement after the end of the covered 

emergency period. 

3. Chevron Deference 

Even if section 12003(b)(2) of the 

CARES Act were found to be 

ambiguous, the Department believes its 

view would be entitled to deference as 

a reasonable reading of a statute it 

administers. Under Chevron, if a court 

concludes that such a statute is 

ambiguous—a determination typically 

referred to as Chevron step one—it must 

defer to the agency’s interpretation as 

long as it is ‘‘based on a permissible 

construction of the statute’’ under 

Chevron step two. Chevron, 467 U.S. at 

843. 

At the outset, the Department has 

authority to promulgate rules to manage 

the Bureau of Prisons, and to administer 

CARES Act section 12003(b)(2). 

Congress vested the Attorney General 

with broad control over the ‘‘control and 

management of Federal penal and 

correctional institutions’’ and the ability 

to ‘‘promulgate rules for the government 

thereof.’’ 42 Congress also delegated 

general authority to the heads of 

executive departments, including the 

Attorney General, to issue regulations 

for the ‘‘government of [the] department, 

the conduct of its employees, [and] the 

distribution and performance of its 

business.’’ 43 Congress plainly intended 

the Department to use its discretion, 

drawing on the expertise of the Attorney 

General and the Director, to administer 

section 12003(b)(2) of the CARES Act. 

First, that section empowers the 

Attorney General to make a finding, 

during the pandemic emergency, that 

the pandemic has materially affected the 

functioning of the Bureau. Second, the 

Attorney General’s finding, in turn, 

triggers the Director’s discretion to 

lengthen the maximum amount of time 

an inmate may be placed in home 

confinement, ‘‘as the Director 

determines appropriate.’’ 44 This 

proposed rule, which codifies the 

Department’s understanding of its 

authority under the CARES Act in 

furtherance of the management of 

Bureau institutions, is issued pursuant 

to these authorities and, when finalized, 

is intended to have the force of law. 

Although the Department believes its 

understanding of CARES Act section 

12003(b)(2) is the best reading of the 

statute for the reasons explained above, 

were a court to disagree and find the 

statute unclear, the Department’s 

interpretation would be reasonable for 

those same reasons and the additional 

reasons explained below. As has already 

been discussed, the Department’s 

interpretation of the CARES Act is 

aligned with the relevant statutory 

language, structure, purpose, and 

history. The Department’s interpretation 

is also consistent with congressional 

action demonstrating an interest in 

increasing the Bureau’s use of home 

confinement. It is in the best operational 

interests of the Bureau and the 

institutions it manages. And it is in the 

best penological interests of affected 

inmates. For these additional reasons, 

detailed further below, if the statute is 

deemed ambiguous, the Department’s 

interpretation of section 12003(b)(2) 

represents a reasonable exercise of the 

Attorney General’s and the Director’s 

policy discretion that would be entitled 

to deference. 

D. Congressional Intent 

The Department’s interpretation of the 

CARES Act is consistent with bipartisan 

legislation signaling Congress’s interest 

in expanding the use of home 

confinement and placing inmates in 

home confinement for longer periods of 

time. Such legislative efforts have been 

part of Congress’s broader push to 

manage prison populations, facilitate 

inmates’ successful reentry into 

communities, and reduce recidivism 

risk.45 These efforts were undertaken 

over years of bipartisan negotiations and 

garnered broad support across the 

political spectrum, beginning with the 

Second Chance Act of 2007 and 


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46The House of Representatives passed the 

Second Chance Act by a vote of 347 to 62, and the 

Senate passed the Act without amendment by 

unanimous consent. See H.R. 1593—Second Chance 

Act of 2007, Congress.gov, available at https://

www.congress.gov/bill/110th-congress/house-bill/ 

1593/actions?r=5&s=5 (last visited Apr. 28, 2022). 

The House of Representatives passed the First Step 

Act by a vote of 358 to 36, and the Senate passed 

the Act by a vote of 87 to 12. See S. 756—First Step 

Act of 2018, Congress.gov, available at https://

www.congress.gov/bill/115th-congress/senate-bill/ 

756/actions?r=6&s=9 (last visited Apr. 28, 2022). 

47SCA, Public Law 110–199, sec. 251(a), 122 Stat. 

657, 692–93 (2008). 

48FSA sec. 602, 132 Stat. 5238. 

49 Id. sec. 603(a), 132 Stat. 5238. 

50 Id. sec. 101, 132 Stat. at 5198, codified in 

relevant part at 18 U.S.C. 3632(d); id. at sec. 102, 

132 Stat. 5210–13, codified at 18 U.S.C. 3624(g). 

51See 18 U.S.C. 3624(g)(2)(A)(iv), (g)(4). 

52 18 U.S.C. 3621(a) (‘‘A person who has been 

sentenced to a term of imprisonment . . . shall be 

committed to the custody of the Bureau of Prisons 

until the expiration of the term imposed . . . .’’). 

53See 18 U.S.C. 3621(b) (providing that ‘‘[t]he 

Bureau of Prisons shall designate the place of the 

prisoner’s imprisonment,’’ taking into account 

factors such as facility resources; the offense 

committed; the inmate’s history and characteristics; 

recommendations of the sentencing court; and any 

pertinent policy of the United States Sentencing 

Commission). Section 3621(b) also authorizes the 

Bureau to direct the transfer of a prisoner at any 

time, subject to the same individualized 

assessment. See id. 

54See, e.g., United States v. Wilson, 503 U.S. 329, 

335 (1992); Rodriguez v. Copenhaver, 823 F.3d 

1238, 1242 (9th Cir. 2016). 

55Annual Determination of Average Cost of 

Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 

1, 2021). 

continuing in the First Step Act of 

2018.46

In the SCA, Congress increased the 

Bureau’s discretion to place inmates in 

home confinement in two ways. First, it 

instructed the Director to ensure, to the 

extent practicable, that a prisoner 

spends a portion of the final months of 

her term of imprisonment in conditions 

designed to prepare her for reentry into 

the community, including community 

correctional facilities, and explicitly 

provided the Director with discretion to 

place inmates in home confinement for 

a period not to exceed the last six 

months or 10 percent of their terms of 

imprisonment.47 Second, the SCA 

established a pilot program to allow the 

Bureau to place eligible non-violent 

elderly offenders in home confinement 

for longer periods. 

Congress further expanded the 

Bureau’s use of home confinement 

through the FSA in three contexts. First, 

the FSA demonstrated Congress’s 

interest in increasing the amount of time 

low-risk offenders spend in home 

confinement, while continuing to leave 

decisions about individual prisoners to 

the Bureau’s discretion, by providing 

that ‘‘[t]he Bureau of Prisons shall, to 

the extent practicable, place prisoners 

with lower risk levels and lower needs 

on home confinement for the maximum 

amount of time permitted under [18 

U.S.C. 3624(c)(2)].’’ 48 Second, the FSA 

reauthorized and expanded the pilot 

program to place eligible elderly 

offenders in home confinement by 

lowering the age requirement from 65 to 

60 years old, reducing the amount of the 

sentence imposed an inmate must have 

served to qualify for the program, and 

allowing it to be applied to eligible 

terminally ill inmates regardless of 

age.49 Third, the FSA created an 

incentive for eligible inmates to 

participate in programs shown to reduce 

their risk of recidivism by allowing 

individuals to earn time credits, which 

may be used for earlier transfer to 

prerelease custody, including home 

confinement, notwithstanding the time 

limits included in 18 U.S.C. 

3624(c)(2).50 The statute provides that 

an inmate placed in home confinement 

under this incentive program ‘‘shall 

remain in home confinement until the 

prisoner has served not less than 85 

percent of the prisoner’s imposed term 

of imprisonment,’’ and that the Bureau 

should provide progressively less 

restrictive conditions on inmates who 

demonstrate continued compliance with 

the conditions of prerelease custody.51

Although the CARES Act was a 

response to the emergency conditions 

presented by the COVID–19 pandemic, 

Congress’s expansion of the Bureau’s 

home confinement authority as part of 

that response is consistent with its 

recent and clear indication of support 

for expanding the use of home 

confinement based on the needs of 

individual offenders. These indications 

of congressional intent further bolster 

the Department’s view that any 

ambiguity in the CARES Act should be 

read to provide the Director with 

discretion to allow inmates placed in 

home confinement who have been 

successfully serving their sentences in 

the community to remain there, rather 

than return such inmates to secure 

custody en masse without making an 

individualized assessment or 

identifying a penological, rehabilitative, 

public health, or public safety basis for 

the action. As explained below, in the 

Bureau’s expert assessment, whether an 

inmate should remain in home 

confinement is a decision best made 

upon careful consideration of the 

appropriate management of Bureau 

institutions, penological, rehabilitative, 

public health, and public safety goals, 

and the totality of the circumstances of 

individual offenders. 

E. Operational Benefits 

Allowing certain inmates who were 

placed in home confinement under the 

CARES Act to remain in home 

confinement after the expiration of the 

covered emergency period will also 

afford a number of operational benefits. 

These benefits include operational 

flexibility in managing BOP-operated 

institutions and cost savings for the 

Bureau. It is further supported by 

evidence demonstrating that the Bureau 

can appropriately manage public safety 

concerns related to inmates in home 

confinement, and by the penological, 

rehabilitative, public health, public 

safety, and societal benefits of allowing 

inmates to effectively prepare for 

successful reentry after the conclusion 

of their criminal sentences. Finally, this 

interpretation permits the Bureau to 

take into account whether returning 

CARES Act inmates to secure custody, 

thereby increasing populations in BOP 

facilities, risks new, potentially serious 

COVID–19 outbreaks in prisons even 

after the broader national emergency has 

passed. 

One of the vital tools in operating a 

correctional system is the ability to 

effectively manage bedspace based on 

the needs of the offender, security 

requirements, and agency resources. 

Congress has explicitly provided the 

Bureau responsibility for maintaining 

custody of Federal inmates 52 and 

discretion to designate the place of 

those inmates’ imprisonment.53 Courts 

have recognized the Bureau’s authority 

to administer inmates’ sentences,54

supporting this management principle. 

The Bureau’s ability to control 

populations in BOP-operated 

institutions as well as, where 

appropriate, in the community, allows 

the Bureau flexibility to respond to 

circumstances as varied as increased 

prosecutions or responses to local or 

national emergencies or natural 

disasters. Providing the Bureau with 

discretion to determine whether any 

inmate placed in home confinement 

under the CARES Act should return to 

secure custody will increase the 

Bureau’s ability to respond to outside 

circumstances and manage its resources 

in an efficient manner that considers 

both public safety and the needs of 

individual inmates. 

Supervision of inmates in home 

confinement is also significantly less 

costly for the Bureau than housing 

inmates in secure custody. In Fiscal 

Year (FY) 2019, the cost of incarceration 

fee (COIF) for a Federal inmate in a 

Federal facility was $107.85 per day; in 

FY 2020, it was $120.59 per day.55 In 

contrast, according to the Bureau, an 

inmate in home confinement costs an 


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56See, e.g., H.R. Rep. No. 115–699, at 22–24 

(‘‘The federal prison system needs to be reformed 

through the implementation of corrections policy 

reforms designed to enhance public safety by 

improving the effectiveness and efficiency of the 

federal prison system in order to control corrections 

spending, manage the prison population, and 

reduce recidivism.’’). 

57See Federal Bureau of Prisons Program 

Statement 7320.01, CN–2, Home Confinement 

(updated Dec. 15, 2017), available at https://

www.bop.gov/policy/progstat/7320_001_CN-2.pdf. 

58Previous research has similarly shown that 

inmates can maintain accountability in home 

confinement programs. See, e.g., Darren Gowen, 

Overview of the Federal Home Confinement 

Program 1988–1996, 64 Fed. Prob. 11, 17 (2000) 

(finding that 89 percent of 17,000 individuals 

placed in home confinement between 1988 and 

1996 successfully completed their terms without 

incident). In addition, studies have found that 

efforts to decarcerate prisons in other contexts, 

which were not limited to home confinement 

measures, did not harm public safety. See, e.g., Jody 

Sundt et al., Is Downsizing Prisons Dangerous? The 

Effect of California’s Realignment Act on Public 

Safety, 15 Criminology & Pub. Policy 315 (2016). 

59See, e.g., H.R. Rep. No. 115–699, at 22¥24; 

SCA sec. 3(a), 122 Stat. at 658 (‘‘The purposes of 

the Act are . . . to rebuild ties between offenders 

and their families, while the offenders are 

incarcerated and after reentry into the community, 

to promote stable families and communities; . . . to 

encourage the development and support of, and to 

expand the availability of, evidence-based programs 

that enhance public safety and reduce recidivism, 

such as substance abuse treatment, alternatives to 

incarceration, and comprehensive reentry services 

. . . .’’). 

60Congress demonstrated support for this type of 

logical progression toward reentry in the First Step 

Act. See FSA sec. 101, 132 Stat. 5212, codifed at 

18 U.S.C. 3624(g)(4) (‘‘In determining appropriate 

conditions for prisoners placed in prerelease 

custody pursuant to this subsection, the Director of 

the Bureau of Prisons shall, to the extent 

practicable, provide that increasingly less restrictive 

conditions shall be imposed on prisoners who 

demonstrate continued compliance with the 

conditions of such prerelease custody, so as to most 

effectively prepare such prisoners for reentry.’’). 

61See SCA sec. 3(b), 122 Stat. 658–60 

(‘‘According to the Bureau of Prisons, there is 

evidence to suggest that inmates who are connected 

to their children and families are more likely to 

avoid negative incidents and have reduced 

sentences. . . . Released prisoners cite family 

support as the most important factor in helping 

them stay out of prison. . . . Transitional jobs 

programs have proven to help people with criminal 

records to successfully return to the workplace and 

the community, and therefore can reduce 

recidivism.’’). 

62Such individualized assessments are consistent 

with direction the Bureau has received from 

Congress in other contexts. For example, Congress 

has made clear that the Bureau must base its 

determination of an inmate’s place of imprisonment 

on an individualized assessment that takes into 

account factors including the inmate’s history and 

characteristics. See 18 U.S.C. 3621(b). 63See, e.g., CDC, For People Living in Prisons and 

Jails (updated Feb. 15, 2022), available at https:// 

www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/living-prisons-jails.html (last visited 

Apr. 29, 2022); Nat’l Academies of Sciences, 

Engineering, and Medicine, Decarcerating 

Correctional Facilities during COVID–19: 

Advancing Health, Equity, and Safety 23–44 (2020), 

available at https://doi.org/10.17226/25945 (last 

visited Apr. 29, 2022). 

average of $55 per day—less than half 

of the cost of an inmate in secure 

custody in FY 2020. Although the 

Bureau’s decision to place an inmate in 

home confinement is based on many 

factors, where the Bureau deems home 

confinement appropriate, that decision 

has the added benefit of reducing the 

Bureau’s expenditures. Such cost 

savings were among the intended 

benefits of the First Step Act.56

As the extremely low percentage of 

inmates placed on CARES Act home 

confinement returned to secure custody 

shows, the Bureau can effectively 

manage public safety concerns 

associated with the low-risk inmates 

placed in home confinement under the 

CARES Act for longer periods of time. 

Indeed, of the nearly 5,000 inmates 

placed in home confinement under the 

CARES Act, as of January 8, 2022, only 

322 had been returned to secure custody 

for any reason, and only eight for 

committing a new crime. Individuals 

placed in home confinement under the 

CARES Act, like other inmates in home 

confinement, remain in the custody of 

the Bureau. Before being placed in home 

confinement, inmates sign agreements 

which require consent to submit to 

home visits and drug and alcohol 

testing, acknowledgement of monitoring 

requirements, and an affirmation that 

they will not engage in criminal 

behavior or possess firearms. Under 

these agreements, individuals placed in 

home confinement are subject to 

electronic monitoring; check-in 

requirements; drug and alcohol testing; 

and transfer back to secure correctional 

facilities for any significant disciplinary 

infractions or violations of the 

agreement.57 CARES Act inmates who 

remain in home confinement after the 

covered emergency period would 

continue to be subject to these 

requirements until the end of their 

sentences, and possibly into a term of 

supervised release. Data show that these 

procedures have been working to 

preserve public safety where inmates 

were placed on extended home 

confinement under the CARES Act, and 

the Department expects that such 

measures will continue to be effective 

after the end of the covered emergency 

period.58 Thus, in the Department’s 

view, the aspects of a criminal sentence 

that preserve public safety can be 

managed in this context while also 

allowing individuals to more effectively 

prepare for life when their criminal 

sentences conclude. 

Congress has demonstrated through 

the passage of the SCA and the FSA an 

increasing interest in appropriately 

preparing inmates for reintegration into 

society, and an ongoing reevaluation of 

the societal benefits of incarceration 

versus non-custodial rehabilitative 

programs.59 Home confinement 

provides penological benefits as one of 

the last steps in a reentry program. An 

inmate would usually be moved over 

the course of a sentence to progressively 

less secure conditions of confinement— 

often from a secure prison, to a 

residential reentry center, to home 

confinement—to provide transition back 

into the community with support, 

resources, and supervision from the 

agency.60 Under typical circumstances, 

inmates who have made the transition 

to home confinement would not be 

returned to a secure facility absent a 

disciplinary reason, because the 

purpose of home confinement is to 

allow inmates to readjust to life in the 

community. Removal from the 

community would therefore frustrate 

this goal. And the widespread return of 

prisoners to secure custody without a 

disciplinary reason would be 

unprecedented. Moreover, as findings in 

the SCA indicate, inmates who are 

provided the types of benefits home 

confinement can afford, such as 

opportunities to rebuild ties to family 

and to return to the workplace and to 

the community, may ultimately be less 

likely to recidivate.61 Although 

placements under the CARES Act were 

not made for reentry purposes, the best 

use of Bureau resources and the best 

outcome for affected offenders is to 

allow the agency to make individualized 

assessments of CARES Act placements 

with a focus on inmates’ eventual 

reentry into the community. Allowing 

the Bureau discretion to determine 

whether inmates who have been 

successfully serving their sentences in 

the community should remain in home 

confinement will allow the Bureau to 

ground those decisions upon case-bycase assessments consistent with 

penological, rehabilitative, public 

health, and public safety goals, rather 

than categorically requiring all inmates 

placed on CARES Act home 

confinement to be treated the same.62

Finally, the Bureau needs flexibility 

to consider whether continued home 

confinement for CARES Act inmates is 

in the interest of the public health, and 

whether reintroduction of CARES Act 

inmates into secure facilities would 

create the risk of new outbreaks of 

COVID–19 among the prison 

population—even after the conclusion 

of the broader pandemic emergency. It 

is now well established that congregate 

living settings, and correctional 

facilities in particular, heighten the risk 

of COVID–19 spread due to multiple 

factors.63 Data have shown that 


jspears on DSK121TN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 118 / Tuesday, June 21, 2022 / Proposed Rules 36795 

64Abigail I. Leibowitz et al., Association Between 

Prison Crowding and COVID–19 Incidence Rates in 

Massachusetts Prisons, April 2020–January 2021, 

181 JAMA Internal Med. 1315 (2021); see also Nat’l 

Academies of Sciences, Engineering, and Medicine, 

Decarcerating Correctional Facilities during 

COVID–19: Advancing Health, Equity, and Safety 

26–27 (2020), available at https://doi.org/10.17226/ 

25945 (last visited Apr. 29, 2022). 

65Early studies demonstrated that around 64 

percent of persons incarcerated in BOP institutions 

who were offered COVID–19 vaccinations accepted 

them. See Liesl M. Hagan et al., COVID–19 

vaccination in the Federal Bureau of Prisons, 

December 2020–April 2021, 39 Vaccine 5883 (2021). 

66CDC, The Possibility of COVID–19 after 

Vaccination: Breakthrough Infections (updated Dec. 

17, 2021), available at https://www.cdc.gov/ 

coronavirus/2019-ncov/vaccines/effectiveness/whymeasure-effectiveness/breakthrough-cases.html 

(last visited Apr. 29, 2022). 

67See Memorandum for the Director, Bureau of 

Prisons from the Attorney General, Re: 

Prioritization of Home Confinement As Appropriate 

in Response to COVID–19 Pandemic (Mar. 26, 

2020), available at https://www.bop.gov/ 

coronavirus/docs/bop_memo_home_

confinement.pdf (directing the Bureau to consider, 

among other discretionary factors, ‘‘the age and 

vulnerability of [an] inmate to COVID–19’’ when 

assessing which inmates should be placed in home 

confinement). 

68Annual Determination of Average Cost of 

Incarceration Fee (COIF), 86 FR 49060, 49060 (Sept. 

1, 2021). 

increased crowding in prisons, which 

makes social distancing difficult, is 

associated with increased incidence of 

COVID–19.64 Although COVID–19 

vaccines are widely available and 

effective at preventing infection, serious 

illness, and death, not all incarcerated 

persons will elect to receive COVID–19 

vaccinations,65 and breakthrough 

infections may occur even in fully 

vaccinated persons, who are then able to 

spread the disease.66 More contagious 

variants of the virus that causes COVID– 

19 could exacerbate the spread, and it 

is unknown whether currently available 

vaccines will be effective against new 

variants that may arise. Accordingly, it 

is appropriate for the Department to 

consider whether the reintroduction 

into prison populations of individuals 

placed in home confinement, in part, 

upon consideration of their 

vulnerability to COVID–19 67 and the 

resulting increased crowding in prison 

settings could lead to new COVID–19 

outbreaks, including breakthrough cases 

in fully vaccinated inmates and 

infections in the most vulnerable 

prisoners. 

For all of these reasons, the 

Department believes that it is not only 

statutorily authorized, but also 

operationally appropriate for the 

Director to have the discretion to allow 

individuals placed in home 

confinement under the CARES Act to 

remain in home confinement after the 

end of the covered emergency period. 

Following the issuance of a final rule, 

the Bureau will develop, in consultation 

with the Department, guidance to 

explain criteria that it will use to make 

individualized determinations as to 

whether any inmate placed in home 

confinement under the CARES Act 

should be returned to secure custody. 

III. Regulatory Certifications 

A. Regulatory Flexibility Act 

The Attorney General, under the 

Regulatory Flexibility Act (5 U.S.C. 

605(b)), reviewed this proposed rule 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. 

B. Executive Orders 12866 and 13563 

This proposed rule has been drafted 

and reviewed in accordance with 

section 1(b) of Executive Order 12866 

(Regulatory Planning and Review) and 

section 1(b) of Executive Order 13563 

(Improving Regulation and Regulatory 

Review). 

This proposed rule falls within a 

category of actions that the Office of 

Management and Budget (OMB) has 

determined to constitute a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866 because it may 

raise novel legal or policy issues arising 

out of implementation of section 

12003(b)(2) of the CARES Act and, 

accordingly, it was reviewed by OMB. 

The Department has assessed the 

costs and benefits of this rulemaking as 

required by Executive Order 12866 

section 1(b)(6) and has made a reasoned 

determination that the benefits of this 

rulemaking justify its costs. 

The economic impact of this proposed 

rule is limited to a specific subset of 

inmates who were placed in home 

confinement pursuant to the CARES Act 

and are not otherwise eligible for home 

confinement at the end of the covered 

emergency period. As of January 10, 

2022, 4,902 inmates had been placed in 

home confinement under the CARES 

Act; 2,826 of those inmates had release 

dates in more than 12 months. The 

Department expects these numbers will 

continue to fluctuate as inmates 

continue to serve their sentences and 

the Bureau continues to conduct 

individualized assessments to make 

home confinement placements under 

the CARES Act for the duration of the 

covered emergency period. 

The Bureau has realized significant 

cost savings by placing eligible inmates 

in home confinement under the CARES 

Act relative to housing those inmates in 

secure facilities, and it expects those 

cost savings to continue for inmates 

who remain in home confinement under 

the CARES Act following the end of the 

covered emergency period. Although 

the Bureau has not yet published the 

average cost of incarceration fees (COIF) 

for Fiscal Year (FY) 2021, in FY 2020 

the average COIF for a Federal inmate in 

a Federal facility was $120.59 per day.68

The average cost for an inmate in home 

confinement was $55 per day, 

representing a cost savings of 

approximately $65.59 per day, per 

inmate, or approximately $23,940.35 per 

year, per inmate. Although the numbers 

will likely differ for FY 2021 and 

beyond, the Department and the Bureau 

expect that the proposed rule will 

benefit them as a result of the avoidance 

of costs the Bureau would otherwise 

expend to confine the affected inmates 

in secure custody. Because the affected 

inmates are currently serving their 

sentences in home confinement, there 

will be no new costs associated with 

this proposed rulemaking. 

As explained above, the proposed rule 

will also have operational, penological, 

and health benefits. These include 

increasing the Bureau’s ability to control 

inmate populations in BOP facilities 

and in the community, allowing it to be 

responsive to changed circumstances; 

empowering the Bureau to make 

individualized assessments as to 

whether inmates placed in home 

confinement should remain in home 

confinement after the end of the covered 

emergency period, taking into account, 

for example, penological goals and the 

benefits associated with an inmate 

establishing family connections and 

finding employment opportunities in 

the community; and allowing the 

Bureau to weigh the ongoing risk of new 

COVID–19 outbreaks in BOP facilities 

against the benefit of returning any 

inmate to secure custody. 

The Department has determined that 

there is no countervailing risk to the 

public safety that outweighs the benefits 

of this rulemaking. The percentage of 

inmates placed in home confinement 

under the CARES Act that have had to 

be returned to secure custody for any 

violation of the rules of home 

confinement is very low; the number of 

inmates who were returned as a result 

of new criminal activity is a fraction of 

that. The vast majority of inmates on 

CARES Act home confinement have 

complied with the terms of the program 

and have been successfully serving their 

sentences in the community. Thus, in 


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36796 Federal Register / Vol. 87, No. 118 / Tuesday, June 21, 2022 / Proposed Rules 

69The Bureau, in its discretion, forwards certain 

home confinement cases to the prosecuting United 

States Attorney’s Office for the input of prosecutors, 

taking any objections into account when approving 

or denying those cases. 

the Department’s assessment, public 

safety considerations do not undercut 

the benefits associated with allowing 

inmates placed in home confinement 

under the CARES Act to remain in home 

confinement after the expiration of the 

covered emergency period. 

Other potential costs relate to inmates 

serving longer sentences in home 

confinement as a result of the CARES 

Act. These inmates might lose the 

opportunity to participate in potentially 

beneficial programming and treatment 

offered only in BOP facilities, which 

they might have otherwise taken 

advantage of if placed in secure custody. 

In addition, most sentencing courts 

anticipated that offenders would be 

incarcerated in a secure facility, and 

there may be concern that placing 

inmates in home confinement for longer 

periods might not appropriately honor 

the intent of the courts, the interests of 

prosecuting United States Attorney’s 

Offices,69 any impact on victims or 

witnesses, possible deterrence effects in 

the community, or other aspects of the 

agency’s mission. These costs are all 

mitigated, however, by retaining the 

Director’s discretion to determine 

whether any inmate should be returned 

to secure custody based on an 

individualized assessment. The 

Department and the Bureau will 

consider the factors referenced in this 

paragraph when developing common 

criteria to govern these case-by-case 

assessments, thereby promoting 

operational efficiency and equitable 

treatment of offenders. 

D. Executive Order 12988 (Civil Justice 

Reform) 

This proposed rule meets the 

applicable standards set forth in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988 (Civil Justice Reform). 

E. Executive Order 13132 (Federalism) 

This proposed rule will not have 

substantial direct effects on the States, 

on the relationship between the Federal 

Government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, under 

Executive Order 13132, the Attorney 

General determines that this proposed 

regulation does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

F. Unfunded Mandates Reform Act of 

1995 

This proposed rule will not result in 

the expenditure by State, local, and 

Tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more (adjusted annually for inflation) in 

any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1501 et seq. 

G. Congressional Review Act 

This proposed rule is not a major rule 

as defined by the Congressional Review 

Act, 5 U.S.C. 804. 

H. Paperwork Reduction Act of 1995 

This proposed rule does not impose 

any new reporting or recordkeeping 

requirements under the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501– 

3521. 

List of Subjects in 28 CFR Part 0 

Authority delegations (Government 

agencies), Government employees, 

National defense, Organization and 

functions (Government agencies), 

Privacy, Reporting and recordkeeping 

requirements, Whistleblowing. 

Accordingly, by virtue of the 

authority vested in me as Attorney 

General, including 5 U.S.C. 301, 18 

U.S.C. 4001 and 28 U.S.C. 509, 510, part 

0 of title 28 of the Code of Federal 

Regulations is proposed to be amended 

as follows: 

PART 0—ORGANIZATION OF THE 

DEPARTMENT OF JUSTICE 

■ 1. The authority citation for part 0 

continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510, 515–519. 

■ 2. In § 0.96, add paragraph (u) to read 

as follows: 

§ 0.96 Delegations. 

* * * * * 

(u) With respect to the authorities 

granted under the Coronavirus Aid, 

Relief, and Economic Security (CARES) 

Act (Pub. L. 116–136): 

(1) During the ‘‘covered emergency 

period’’ as defined by the CARES Act, 

when the Attorney General determines 

that emergency conditions will 

materially affect the functioning of the 

Bureau of Prisons (Bureau), lengthening 

the maximum amount of time for which 

the Director is authorized to place a 

prisoner in home confinement under 18 

U.S.C. 3624(c)(2), as the Director 

determines appropriate. 

(2) After the expiration of the 

‘‘covered emergency period’’ as defined 

by the CARES Act, permitting any 

prisoner placed in home confinement 

under the CARES Act who is not yet 

otherwise eligible for home confinement 

under separate statutory authority to 

remain in home confinement under the 

CARES Act for the remainder of her 

sentence, as the Director determines 

appropriate. 

(3) This section concerns only 

inmates placed in home confinement 

under the CARES Act. It has no effect 

on any other inmate, including those 

placed in home confinement under 

separate statutory authorities. 

Dated: June 14, 2022. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2022–13217 Filed 6–17–22; 8:45 am] 

BILLING CODE 4410–05–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2021–0200; FRL–8515–02– 

OAR] 

RIN 2060–AV23 

New Source Performance Standards 

Review for Industrial Surface Coating 

of Plastic Parts for Business Machines 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing amendments 

to the Standards of Performance for 

Industrial Surface Coating of Plastic 

Parts for Business Machines as the 

preliminary results of the review of the 

new source performance standards 

required by the Clean Air Act. Specific 

to affected facilities that commence 

construction, modification, or 

reconstruction after June 21, 2022, the 

EPA is, in new subpart TTTa, proposing 

volatile organic compound (VOC) 

emission limitations for prime, color, 

texture, and touch-up coating 

operations. We are also proposing in 

subparts TTTa and TTT to include a 

requirement for electronic submission of 

periodic compliance reports. 

DATES: Comments must be received on 

or before August 22, 2022. Under the 

Paperwork Reduction Act (PRA), 

comments on the information collection 

provisions are best assured of 

consideration if the Office of 

Management and Budget (OMB) 

receives a copy of your comments on or 

before July 21, 2022. 


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