2013-04589. Compassionate Release; Technical Changes

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Interim rule.

SUMMARY:

In this interim rule, the Bureau of Prisons (Bureau) makes a minor change to remove an administrative level of review from the processing of a Compassionate Release request packet.

DATES:

This rule is effective April 1, 2013.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

In this interim rule, the Bureau of Prisons (Bureau) makes a minor change to remove an administrative level of review from the processing of a Compassionate Release request packet. Previously, under § 571.62, when a request for compassionate release was made, the request was first reviewed by the Warden of the facility where the inmate making the request is located. If the Warden, after reviewing the request, determines that the request warrants approval, the Warden needed to refer the matter in writing with recommendation to the Regional Director for the region in which the inmate was located. The Regional Director then had to conduct another review and approval before forwarding the request to the General Counsel's office in the Central Office of the Bureau of Prisons. We now remove the Regional Director level of review in order to expedite the process.

Under the Administrative Procedure Act (5 U.S.C. 553), there are exceptions to notice-and-comment rulemaking for “(A) interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds * * * that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

Here, this change falls under both (A) and (B): It is a rule of agency procedure or practice, as it is an internal level of administrative review of an inmate request. Additionally, notice and comment is unnecessary because those most likely to comment—inmates—will find it advantageous to have the expedited review allowed by this change. Further, Regional Director review is unnecessary and repetitive. All the factors reviewed and considered in a Compassionate Release request are reviewed and evaluated anew at the General Counsel level. The Bureau also believes adequate and sufficient review of inmate requests is already served by Warden, General Counsel and Director review of each request. For these reasons, we finalize this change without previous notice and comment under the exceptions allowed by the Administrative Procedure Act.

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 regulation is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this regulation 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. Therefore, under Executive Order 13132, we determine that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and 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 and the Director of the Bureau of Prisons. Its economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This regulation is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This regulation 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 571

• Prisoners

Charles E. Samuels, Jr.

Director, Bureau of Prisons

Under rulemaking authority vested in the Attorney General in 5 U.S.C 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we amend 28 CFR part 571, chapter V, subchapter D, as follows.

SUBCHAPTER D—COMMUNITY PROGRAMS AND RELEASE

PART 571—RELEASE FROM CUSTODY

1. Revise the authority citation for 28 CFR part 571 to read as follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3565; 3568 and 3569 (Repealed in part as to offenses committed on or after November 1, 1987), 3582, 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4161-4166 and 4201-4218 (Repealed as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984, as to offenses committed after that date), 5031-5042; 28 U.S.C. 509 and 510; U.S. Const., Art. II, Sec. 2; 28 CFR 1.1-1.10; DC Official Code sections 24-101, 24-461 24-465, 24-467, and 24-468.

Subpart G—Compassionate Release (Procedures for the Implementation Of 18 U.S.C. 3582(C)(1)(A) and 4205(G))

§ 571.61

[Amended]

2. In § 571.61, paragraph (b), remove the words “Office or at a Regional” after the word “Central”.

3. In § 571.62, revise paragraph (a) to read as follows:

§ 571.62

Approval of request.

(a) The Bureau of Prisons makes a motion under 18 U.S.C. 4205(g) or 3582(c)(1)(A) only after review of the request by the Warden, the General Counsel, and either the Medical Director for medical referrals or the Assistant Director, Correctional Programs Division for non-medical referrals, and with the approval of the Director, Bureau of Prisons.

(1) The Warden shall promptly review a request for consideration under 18 U.S.C. 4205(g) or 3582(c)(1)(A). If the Warden, upon an investigation of the request determines that the request warrants approval, the Warden shall refer the matter in writing with recommendation to the Office of General Counsel.

(2) If the General Counsel determines that the request warrants approval, the General Counsel shall solicit the opinion of either the Medical Director or the Assistant Director, Correctional Programs Division depending upon the nature of the basis of the request. With this opinion, the General Counsel shall forward the entire matter to the Director, Bureau of Prisons, for final decision.

(3) If the Director, Bureau of Prisons, grants a request under 18 U.S.C. 4205(g), the Director will contact the U.S. Attorney in the district in which the inmate was sentenced regarding moving the sentencing court on behalf of the Bureau of Prisons to reduce the minimum term of the inmate's sentence to time served. If the Director, Bureau of Prisons, grants a request under 18 U.S.C. 3582(c)(1)(A), the Director will contact the U.S. Attorney in the district in which the inmate was sentenced regarding moving the sentencing court on behalf of the Director of the Bureau of Prisons to reduce the inmate's term of imprisonment to time served.

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4. In § 571.63, revise paragraph (a) to read as follows:

§ 571.63

Denial of request.

(a) When an inmate's request is denied by the Warden, the inmate will receive written notice and a statement of reasons for the denial. The inmate may appeal the denial through the Administrative Remedy Procedure (28 CFR part 542, subpart B).

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