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Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act rule (2023)

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The Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act rule is a significant rule issued by the Office of the Attorney General, U.S. Department of Justice (DOJ) effective May 4, 2023, that affirmed the Director of the Bureau of Prisons' (BOP) authority to decide that prisoners placed in home confinement under the CARES Act could remain in home confinement even after the covered COVID-19 pandemic emergency ended. DOJ issued this rule pursuant to the authority provided it under the CARES Act.[1]

HIGHLIGHTS
  • Name: Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act
  • Agency: Office of the Attorney General, U.S. Department of Justice (DOJ)
  • Action: Final rule
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

    In March 2020, the Attorney General (AG) directed the Director of the Bureau of Prisons (BOP) to transition as many inmates as possible from prisons to home confinement due to the risk of the spread of SARS-CoV-2 in prisons; the AG issued a non-exhaustive list of criteria that qualify inmates for transfer to home confinement. The day after the memorandum, March 27, 2020, Congress passed the CARES Act, which gave the BOP Director expanded authority to transition inmates to home confinement during the covered COVID-19 pandemic emergency period, according to the rule. BOP created criteria to be used on an individual basis to grant home confinement to inmates. The CARES Act did not specify whether the BOP Director's authority extended past the covered emergency period, and some families of inmates transferred to home confinement worried that when the emergency period was officially over, their relatives under home confinement might be returned to secure imprisonment, according to the rule. The Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act rule grants the BOP Director to continue deciding on an individual basis whether or not inmates qualify for home confinement even after the COVID-19 emergency period ends.[1]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ 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. The Department of Justice (“Department” or “DOJ”) promulgates this final rule to affirm that the Director has the authority and discretion to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period.[1][2] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “

    (u) With respect to the authorities granted under the Coronavirus Aid, Relief, and Economic Security (CARES) Act:

    (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 the prisoner's sentence, as the Director determines appropriate, provided the prisoner is compliant with all conditions of supervision. In the event a prisoner violates the conditions of supervision, Bureau staff may return the prisoner to secure custody, or may utilize progressive discipline as outlined in the Residential Reentry Center (RRC) contract, which may include possible placement in an RRC or contract facility in lieu of direct return to secure custody.

    (3) This paragraph (u) 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.[2]

    		”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act rule states that OMB deemed this rule a section 3(F)(1) rule under E.O. 14094:

    “ This 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.[2] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Federal Register, "Office of the Attorney General; Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act," January 16, 2024
    2. ↑ 2.0 2.1 2.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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