02-18625. District of Columbia Educational Good Time Credit

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Interim final rule.

SUMMARY:

In this document, the Bureau of Prisons (Bureau) describes procedures for awarding educational good time credit consistent with D.C. Code § 24-221.01 (DCEGT). This rule will apply to D.C. Code offenders in Bureau institutions or Bureau contract facilities under the National Capital Revitalization and Self-Government Improvement Act of 1997 (D.C. Revitalization Act), D.C. Code § 24-101(b), who committed their offenses before August 5, 2000. Through this rule, we will allow inmates sentenced under the D.C. Code to retain benefits permitted by the D.C. Code while fulfilling our statutory mandate to provide for their custody consistent with the sentence imposed.

DATES:

This rule is effective on July 24, 2002. Comments are due by September 23, 2002.

ADDRESSES:

Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

What Will This Rule Do?

Through this rule, the Bureau of Prisons (Bureau) will add a subpart D to its regulations in 28 CFR part 523, on Computation of Sentence. The new subpart D will establish procedures for awarding educational good time credit consistent with D.C. Code § 24-221.01. (We refer to educational good time credit consistent with the D.C. Code as “DCEGT.”)

This rule will apply to D.C. Code offenders who committed their offense before August 5, 2000 and are in Bureau institutions or Bureau contract facilities under the D.C. Revitalization Act.

Why Are We Making This Rule?

We are making this rule to comply with the D.C. Revitalization Act, enacted August 5, 1997. This Act makes the Bureau responsible for the “custody, care, subsistence, education, treatment and training” of “the felony population sentenced pursuant to the District of Columbia Code” (D.C. Code offenders). (D.C. Code § 24-101(b)) D.C. Code offenders in Bureau custody are subject to Federal laws and Bureau regulations as long as they are “consistent with the sentence imposed.”

In August of 1997, when the D.C. Revitalization Act was enacted, the Bureau began absorbing approximately 8000 D.C. Code offenders. It was unclear at that time to what extent, if any, the Bureau would be bound by D.C. Code legislation which purported to direct Bureau functions.

As numerous D.C. Code provisions were analyzed for applicability to Bureau functions, it was generally concluded that the Bureau would have to follow D.C. Code sentence calculation provisions (e.g., good time, jail credit, etc.) to the extent non-compliance would result in an ex post facto violation of the offender's sentence. The Bureau based this approach on the provision in D.C. Revitalization Act requiring the Bureau to apply Federal laws to D.C. Code offenders “consistent with the sentence imposed.”

The Bureau concluded that D.C. Code offenders who committed their offenses before August 5, 2000 are entitled to educational good time sentence credit. As a result, we developed these rules to give effect to the D.C. Code educational good time sentence credit (DCEGT) provisions in the Bureau's education and sentence calculation systems.

Section 24-221.01 of the D.C. Code provides for “educational good time credits of no less than 3 days a month and not more than 5 days a month” when a D.C. Code offender completes an educational program and obeys institution rules. This provision applies when a D.C. Code offender completes an educational program on or after April 11, 1987, when section 24-221.01 was enacted.

Section 24-403.01(d) of the D.C. Code, enacted April 23, 1998, however, requires that D.C. Code offenders who committed their offense on or after August 5, 2000, receive good time credit “only as provided in 18 U.S.C. 3624(b).” This statute in the Federal Criminal Code directs the Bureau how to award good time credit to U.S. Code offenders. Bureau regulations implementing this provision are in 28 CFR 523.20.

D.C. Code offenders who successfully complete an educational program on or after April 11, 1987, and who committed their offense before August 5, 2000, may receive educational good time credit consistent with D.C. Code § 24-221.01 (DCEGT). By contrast, D.C. Code offenders who commit their offense on or after August 5, 2000, are eligible for good time credit only under the Federal law, 18 U.S.C. 3624(b).

To be “consistent with the sentence imposed,” as required by the D.C. Revitalization Act (D.C. Code § 24-101(b)), the Bureau developed these rules on DCEGT to conform with D.C. law on DCEGT in D.C. Code § 24-221.01.

How Do These Rules Work?

The rules describe eligibility for DCEGT, how we award it, how we limit it, and how to appeal our decisions on DCEGT. We will allow 5 days of DCEGT for each calendar month that a D.C. offender is enrolled in a Bureau-designated education program. Eligible D.C. offenders can earn DCEGT up to a Bureau-determined maximum amount, which varies for different types of educational programs.

Why Is This an Interim Final Rule?

We are making this an interim final rule for the following reasons:

As a result of National Capital Revitalization and Self-Government Improvement Act of 1997 (D.C. Revitalization Act), D.C. Code § 24-101(b), passed August 5, 1997, we are responsible for administering the sentences of D.C. Code offenders in our custody, including DCEGT awards.

Since the D.C. Revitalization Act's enactment on August 5, 1997, D.C. Code offenders in Bureau custody may have completed educational programs designated by these rules as eligible for DCEGT.

If we do not implement this rule as soon as possible, inmates eligible for DCEGT risk being considered parole eligible at a later date than if the credit were awarded. Also, for D.C. Code offenders projected for mandatory release, an award of DCEGT may affect their release date.

Therefore, to insure that D.C. Code offenders in our custody receive the benefit of DCEGT, these rules must take effect as soon as possible. Having a DCEGT system in place also provides eligible offenders incentive to pursue educational programming, which may ultimately help them re-adjust to the community.

Where To Send Comments

You can send written comments on this rule to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., HOLC Room 754, Washington, DC 20534.

We will consider comments we receive during the comment period before we take final action. We will try to consider comments we receive after the end of the comment period. In light of comments we receive, we may change the rule.

We do not plan to have oral hearings on this rule. All the comments we receive remain on file for public inspection at the above address.

Executive Order 12866

The Office of Management and Budget (OMB) determined that certain rules are part of a category of actions which are not “significant regulatory actions” under section 3(f) of Executive Order 12866. Because this rule falls within that category, OMB did not review it.

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.

Plain Language Instructions

We want to make Bureau documents easier to read and understand. If you can suggest how to improve the clarity of these regulations, call or write to Sarah Qureshi at the address or telephone number listed above.

List of Subjects in 28 CFR Part 523

• Prisoners

Kathleen Hawk Sawyer,

Director, Bureau of Prisons.

Under the rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we amend part 523 in subchapter B of 28 CFR, chapter V as set forth below.

SUBCHAPTER B—INMATE ADMISSION, CLASSIFICATION, AND TRANSFER

PART 523—COMPUTATION OF SENTENCE

1. The authority citation for 28 CFR part 523 continues to read as follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3568 (Repealed November 1, 1987 as to offenses committed on or after that date), 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to conduct occurring on or after November 1, 1987), 4161-4166, (repealed October 12, 1984, as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

2. Add Subpart D, consisting of §§ 523.30 through 523.34, to read as follows:

Subpart D—District of Columbia Educational Good Time Credit

523.30

What is educational good time sentence credit?

523.31

Who is eligible for DCEGT?

523.32

How much DCEGT can I earn?

523.33

How is eligibility for DCEGT limited?

523.34

How can I challenge DCEGT award decisions?

Subpart D—District of Columbia Educational Good Time Credit

§ 523.30

What is educational good time sentence credit?

Educational good time sentence credit is authorized by District of Columbia (D.C.) Code § 24-221.01, and reduces the amount of time to serve under a term of imprisonment. In these rules, we refer to D.C. educational good time as “DCEGT.”

§ 523.31

Who is eligible for DCEGT?

You are eligible for DCEGT if:

(a) You are incarcerated in a Bureau of Prisons' (Bureau) institution or a Bureau contract facility;

(b) You are serving a term of imprisonment for a D.C. criminal code violation committed before August 5, 2000;

(c) Your Unit Team approved or designed a plan for you to complete a program designated by the Bureau as eligible for DCEGT;

(d) The Supervisor of Education (SOE) finds that you successfully completed a Bureau-designated education program on or after August 5, 1997; and

(e) You did not violate prison discipline rules while enrolled in the program (see § 523.33).

§ 523.32

How much DCEGT can I earn?

(a) You can earn 5 days DCEGT for each month you were enrolled in a designated program, up to the maximum amount designated by the Bureau for the type of program successfully completed.

(b) You are limited to 5 days per month DCEGT, even if enrolled in more than one designated program.

(c) Enrollment in a designated program for any portion of a calender month earns one full month's worth of DCEGT.

(d) You are not eligible for DCEGT which, if awarded, would make you past due for release.

(e) Once appropriately awarded, DCEGT vests, and cannot be forfeited.

§ 523.33

How is eligibility for DCEGT limited?

Eligibility for DCEGT is limited in two ways:

(a) If you violate prison rules, you are not eligible for one month's worth of DCEGT for each disciplinary incident committed during the program enrollment period. A Discipline Hearing Officer, or other staff using procedures similar to those in 28 CFR 541.17, must determine that you committed a prohibited act.

(b) The nature of your offense may limit your eligibility for DCEGT under D.C. Code 24-221.01b or 24-221.06.

§ 523.34

How can I challenge DCEGT award decisions?

You can use the Administrative Remedy Program, 28 CFR 542.10 through 542.19, to challenge Bureau of Prisons decisions regarding DCEGT.