E8-15784. Intensive Confinement Center Program

AGENCY:

Federal Bureau of Prisons.

ACTION:

Final rule.

SUMMARY:

The Bureau of Prisons (Bureau) removes current rules on the intensive confinement center program (ICC). The ICC is a specialized program for non-violent offenders combining features of a military boot camp with traditional Bureau correctional values. The Bureau will no longer be offering the ICC program (also known as Shock Incarceration or Boot Camp) to inmates as a program option. This decision was made as part of an overall strategy to eliminate programs that do not reduce recidivism.

DATES:

This rule is effective on August 11, 2008.

FOR FURTHER INFORMATION CONTACT:

Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone [phone].

SUPPLEMENTARY INFORMATION:

Through this rulemaking, the Bureau seeks to be clear to inmates and the public regarding the termination of the ICC program. A proposed rule on this subject was published in the Federal Register on November 2, 2006 (71 FR 64504). We received three comments. The issues raised by the commenters are addressed below.

One commenter, a former inmate, recounted his positive experience in an ICC program in a Bureau facility, and suggested that such positive experiences should be sufficient to continue the ICC program.

Although this inmate is to be commended for taking full advantage of the opportunities offered through the ICC program, we note that it is unfortunate that his experience was not repeated often enough to justify the extra costs implicated in the ICC program. As we stated in the preamble to the proposed rule, despite anecdotal successes, research has found no significant difference in recidivism rates between inmates who complete boot camp programs and similar offenders who serve their sentences in traditional institutions.

Moreover, the costs associated with maintaining the federal boot camp programs exceed the costs of operating ordinary minimum security camps, as a result of (1) the staff resources necessary to maintain the intensive core programming that make up the “shock incarceration” or “intensive confinement” experience, and (2) the high costs of housing offenders for extended periods of time in Community Corrections Centers, where the per capita costs are higher than those of housing offenders in minimum security camps.

While there are some cost savings due to the early release of offenders who successfully complete the program, these savings are minimal compared to the additional costs of operating the program, which create a net increased cost to the agency of more than $1 million per year.

The remaining two commenters expressed the idea that “Congress clearly intends for the BOP to run a shock incarceration program; BOP merely has the discretion to decide which inmates it places therein. No logical reading of section 4046 implies that the discretionary `may' in subsection (a) refers to giving BOP discretion as to offering the shock incarceration program.”

Several courts that have ruled on this issue since the discontinuance of the ICC program have found that 18 U.S.C. 4046 does not require the Bureau to operate a shock incarceration program—it merely authorizes the Bureau to grant certain benefits to those covered by the statute. Palomino v. Federal Bureau of Prisons, 408 F. Supp.2d 282 (S.D. Tex. 2005); Roman v. LaManna, C/A 8:05-2806-MBS, 2006 WL 2370319 (D.S.C. Aug. 15, 2006); Serrato v. Clark, C 05-03416 CRB, 2005 WL 3481442 (N.D. Cal. Dec. 19, 2005); U.S. v. McLean, CR 03-30066-AA, 2005 WL 2371990 (D. Ore. Sept. 27, 2005). Indeed, the Bureau has always had the authority to operate a program like the ICC, but prior to passage of 4046 could not have offered the sentence reduction incentive.

The commenters also remarked that Congress appropriated funds for the operation of the ICC program. However, regarding appropriations, Congress has never specifically appropriated funds for the ICC program, i.e., there was and is no line item appropriation. The ICC was merely considered as one of a variety of programs in the Bureau's overall budget needs.

For the aforementioned reasons, we now finalize the removal of the regulations in Subpart D of 28 CFR part 524.

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 not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not 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 § 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 in 28 CFR Part 524

• Prisoners

Harley G. Lappin,

Director, Bureau of Prisons.

Under rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we amend 28 CFR part 524 as set forth below.

SUBCHAPTER B—INMATE ADMISSION, CLASSIFICATION, AND TRANSFER

PART 524—CLASSIFICATION OF INMATES

1. The authority citation for part 524 continues 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.

Subpart D—[Removed]

2. Subpart D—Intensive Confinement Center Program, consisting of §§ 524.30 through 524.33, is removed and reserved.