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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: June 9, 2003 (Volume 68, Number 110)]
[Rules and Regulations]               
[Page 34299-34301]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn03-6]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 571

[BOP-1097-F]
RIN 1120-AA93

 
Release Gratuities, Transportation, and Clothing: Aliens

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Bureau of Prisons (Bureau) 
regulations on release gratuities, transportation, and clothing to 
limit the release gratuity available to aliens. Only aliens released to 
immigration authorities for release or transfer to a community 
corrections center are eligible for a gratuity of up to $10. Aliens 
released for deportation, exclusion, or removal, or aliens detained or 
serving 60 days or less in a contract facility will not receive any 
release gratuity. We intend this rule to reduce costs by providing the 
gratuity only to those aliens whom the Bureau determines to be in need.

DATES: This rule is effective on July 9, 2003.

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 (202)307-2105.

SUPPLEMENTARY INFORMATION: The Bureau published a proposed rule 
amending its regulations on release gratuities, transportation, and 
clothing (28 CFR 571, subpart C) on October 4, 1999 (64 FR 53872). The 
previous regulations on this subject were published in the Federal 
Register on May 21, 1991 (56 FR 23480) and were amended on September 
10, 1996 (61 FR 47795).

Change to the Previous Rule

    Previous provisions on release gratuities in section 571.21(e) 
specified that with the exception of aliens serving 60 days or less in 
contract facilities, each alien released to immigration authorities is 
to have $10 cash.
    Under this final rule, aliens released for the purpose of 
deportation, exclusion, or removal will not receive a $10 gratuity. 
Because these inmates are to become the responsibility of the Bureau of 
Citizenship and Immigration Services (BCIS), it is not appropriate for 
the Bureau to provide a $10 gratuity.
    We estimate that approximately 8.5% of the total inmate population 
of the Federal Bureau of Prisons will be affected by this rule.

Public Comment and Bureau Response

    We received five comments on the proposed rule. One commenter 
supported the rule, indicating that it would reduce cost to the Bureau.
    Two commenters expressed concern that when aliens are released to 
the Immigration and Naturalization Service (INS, now the Bureau of 
Citizenship and Immigration Services [BCIS]), they may not necessarily 
be released for the purposes of exclusion, deportation or removal, and 
therefore still need a $10 gratuity. One commenter was concerned that 
aliens may be ``wrongly classified'' by the Bureau as being excludable, 
deportable, or removable, a decision which, the commenter said, cannot 
be made without ``a hearing before an Immigration judge.''
    The Bureau's policies regarding release of aliens to the INS (BCIS) 
for exclusion, deportation, or removal can be found in the Bureau's 
Program Statement on the Institution Hearing Program (PS 5111.01), 
accessible on the internet at www.bop.gov or through the Freedom of 
Information Act process. This describes the process for identifying 
aliens for release to the INS (BCIS) for purposes of exclusion, 
deportation or removal. The Bureau, INS (BCIS) and the Executive Office 
for Immigration Review (EOIR) jointly developed the Institution Hearing 
Program (IHP) to ensure that deportation proceedings begin as quickly 
as possible after an alien inmate's conviction and finish before the 
alien inmate's release date.
    IHP hearing sites are specific institutions where alien inmates

[[Page 34300]]

participate in immigration hearings conducted by the INS (BCIS) and 
EOIR. After INS (BCIS) and EOIR make a decision to exclude, deport or 
remove an alien, the alien is transferred to an IHP release site close 
to deportation locations, where alien inmates remain until their 
sentences expire. The INS (BCIS) and EOIR, not the Bureau, make the 
decision regarding an alien's status. Therefore, there is no way that 
the Bureau can ``wrongly classify'' an alien, as the commenter feared.
    One commenter cited the preamble to the original rule, published in 
1979 (44 FR 38236), which stated that the purpose of the gratuity is to 
ensure that the alien has money to care for him-/herself in the 
community until he/she receives an income. The commenter suggested that 
eliminating this gratuity would be contrary to the purpose of providing 
the funds--for transportation and communicating with family or legal 
counsel.
    Since aliens who had received the $10 gratuity were not released to 
the community, but instead to INS (BCIS), they would have no need of 
support pending their ability to earn an income. Instead, they are 
released into the custody of INS (BCIS), who is responsible for 
transporting them, and they can access INS (BCIS) provisions for 
communicating with family members and legal counsel.
    One commenter expressed concern that this rule would not actually 
reduce cost to the Bureau. According to our recent statistics, in 
December of 1999, we released approximately 958 INS (BCIS) detainees. 
Therefore, extrapolating this statistic, we estimate that approximately 
11,500 aliens receive this gratuity annually. Therefore, this rule 
would save the Bureau approximately $115,000 every year. We consider 
this a significant cost savings for the Bureau.
    Finally, we received a letter which we construed to be a comment on 
the proposed rule, as it raised the subject of release gratuities. 
However, we found that the commenter, an inmate, did not address the 
issues raised by the proposed rule, but instead questioned the Bureau's 
application of 18 U.S.C. 4281, instead of 18 U.S.C. 3624(d), to his 
situation. Although this comment is not relevant to this final rule, we 
will briefly address it here.
    18 U.S.C. 4281, which was repealed in 1984 (see Pub.L. 98-473, 
Title II, Sec.  218(a)(7), October 12, 1984, 98 Stat. 2027), allowed 
only a $100 gratuity to prisoners upon release. Its replacement, 18 
U.S.C. 3624(d), allows ``an amount of money, not more than $500'' in 
the Director's discretion. The inmate commented that, on his release, 
he should receive the $500 described in the latter statute instead of 
the $100 described in the former statute.
    Section 235 of Public Law 98-473 stated that 18 U.S.C. 3624 and 
other provisions created by that Public Law would ``take effect on the 
first day of the first calendar month beginning 36 months after the 
date of enactment [October 12, 1984] and [would] apply only to offenses 
committed after the taking effect of this chapter.'' The effective date 
of 18 U.S.C. 3624 is, therefore, November 1, 1987. Because this 
commenter's offense occurred before November 1, 1987, 18 U.S.C. 3624(d) 
does not entitle him to a $500 gratuity upon release.
    We publish the proposed rule, without change, as a final rule. You 
may send further comments on this rule by writing to the address noted 
above. Although we will not formally respond to further comments by 
publication in the Federal Register, we will consider them.

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 of the 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. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule 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.

Unfunded Mandates Reform Act of 1995

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

Harley G. Lappin,
Director, Bureau of Prisons.

0
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 551 in subchapter C of 28 CFR, chapter V as set forth below.

SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE

PART 571--RELEASE FROM CUSTODY

0
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; 3568-3569 (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, 510; U.S. 
Const., Art. II, Sec. 2; 28 CFR 1.1-1.10.


0
2. In Sec.  571.21, revise paragraph (e) to read as follows:


Sec.  571.21  Procedures.

* * * * *
    (e) Staff will ensure that each alien released to immigration 
authorities for

[[Page 34301]]

the purpose of release or transfer to a community corrections center 
has $10 cash. This provision does not apply to aliens being released 
for the purpose of deportation, exclusion, or removal, or to aliens 
detained or serving 60 days or less in contract facilities.

[FR Doc. 03-14379 Filed 6-6-03; 8:45 am]
BILLING CODE 4410-05-P




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