BOP's new 2026 rule: FSA credits now start at sentencing, not arrival

On August 31, 2026, the Bureau of Prisons published an interim final rule (91 FR 55740) amending its First Step Act time credits regulation: an eligible person now begins earning credits when the term of imprisonment commences under 18 U.S.C. § 3585(a) — no longer only after arriving at the designated BOP facility. That means the weeks spent in U.S. Marshals custody between sentencing and arrival — 66 days on average, by BOP's own analysis — can now count toward credits, worth roughly 24 days of earlier release for the average person. The rule also confirms that people serving foreign (treaty-transfer) sentences can have credits applied once the U.S. Parole Commission sets an equivalent U.S. sentence. It takes effect September 30, 2026, and public comments are open until that date.

Reviewed against 91 FR 55740 (Aug. 31, 2026), 28 C.F.R. § 523.42, and 18 U.S.C. § 3585(a). Last updated 2026-08-31.

What exactly did the rule change?

Two amendments to 28 C.F.R. part 523, subpart E, the regulation that implements FSA time credits:

§ 523.42(a) — when earning starts. The old text said a term of imprisonment commences — and credits can begin — on 'the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served.' That parenthetical is deleted. The rule now simply says an eligible person begins earning FSA Time Credits after the term of imprisonment commences, which under 18 U.S.C. § 3585(a) is the date the person is received in custody awaiting transport to the designated facility, or voluntarily surrenders there.
§ 523.44(a)(3) — foreign sentences. A new sentence confirms that the general bar on applying credits to non-U.S.-Code sentences does not block people serving a sentence imposed in a foreign country and transferred to BOP custody under a treaty, so long as the U.S. Parole Commission has determined an equivalent U.S. Code sentence under 18 U.S.C. § 4106A. This codifies what BOP says is already its practice.

This is an interim final rule — it takes effect September 30, 2026 without a prior comment period, but BOP is accepting comments through September 30, 2026 at regulations.gov (docket BOP-1183-I, 'FSA Time Credits rule').

Why did BOP make this change now?

Courts forced the issue. Federal judges across the country had been ruling that the 'arrival at the designated facility' requirement conflicts with the plain text of the First Step Act, which keys earning to the sentence, not to BOP's transport logistics. The rule's preamble cites the First Circuit's April 2026 decision in *Miles v. Bowers* ('plainly conflicts with the text of the FSA') plus district court decisions from Alabama, Florida, New Jersey, California, Minnesota, Massachusetts, Washington, Hawaii, New Hampshire, and South Dakota reaching the same conclusion.

Rather than keep losing habeas cases one at a time, BOP amended the regulation to match 18 U.S.C. § 3585(a): a federal sentence commences when the person is received into custody for service of the sentence — including the time riding buses and sitting in county jails and transfer centers between sentencing and the designated prison. It cannot start before the sentence is imposed, so pretrial detention still counts (if at all) as jail credit under § 3585(b), not as FSA earning time.

How much time is this actually worth?

BOP's own analysis in the rule found the average gap between sentencing and arrival at the designated facility is 66.06 days, which at current risk-level mixes works out to an average of 23.81 days of time credits per person — credits that until now were simply lost. BOP projects roughly 25,000 people a year will benefit and estimates it will save about $54 million annually in incarceration costs.

Worked example

Sentenced in the Southern District, 70 days in transit

Sentenced March 1; remanded to USMS custody the same day → sentence commences March 1 under § 3585(a).
Holdover at a county jail, then a transfer center; arrives at the designated FCI on May 10 (70 days later).
Old rule: earning starts May 10 — the 70 transit days earn nothing.
New rule: earning can start March 1. At the default 10-days-per-30 rate, those 70 days are worth ~23 credits.
23 credits move the supervised-release transfer date ~3 weeks earlier (or push the halfway-house date earlier if the 365-day cap is already met).

Earning is still not automatic. The statute requires successful participation in assigned programming (18 U.S.C. § 3632(d)(4)(A)), and structured programs are scarce in transit and holdover status. BOP's preamble says the change 'allows inmates awaiting transportation to begin FSA-approved programming' — how generously BOP credits transit periods in practice is the thing to watch on the FSA assessment printout after September 30.

What does the rule not change?

Eligibility — the excluded-offense list under § 3632(d)(4)(D) is untouched.
Earning rates — still 10 days per 30, or 15 per 30 with two consecutive minimum/low PATTERN assessments.
The 365-day cap on applying credits toward early supervised release.
Application requirements — a minimum/low risk level (or warden approval) is still required to apply credits.
Pretrial time — time in custody before the sentence is imposed still cannot earn FSA credits; a sentence cannot commence before it is pronounced.

How OutDate handles this rule change

OutDate's calculator already anchors the sentence to its commencement date under § 3585(a) and asks separately when credit-earning participation began — so you can model the new rule today by setting the programming start to the custody date instead of the facility-arrival date and watching the projected dates move. Every derived date comes with a cited receipt showing which rule produced it.

After September 30, the number to check is BOP's: if the FSA assessment printout still shows earning starting at facility arrival, that is now a computation discrepancy with a Federal Register citation behind it. OutDate Pro is built for exactly this moment — it generates a discrepancy report comparing your statute-based math to BOP's number, cited and formatted to mail to the case manager, and drafts the BP-8 → BP-11 remedy chain with deadline tracking if the informal route stalls.

Pro members also get priority rules-change alerts: when a rule like this one ships, OutDate recalculates the case under the updated rules and emails what changed and by how many days. The 7-day free trial is enough to enter a case, run the what-if, and see whether the transit window moves your person's dates.

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The free OutDate calculator applies these rules to a real sentence — Good Conduct Time, First Step Act credits, halfway house and RDAP dates — with every assumption listed next to the answer. No account needed; nothing is stored.

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Frequently asked questions

When does the new FSA earning-start rule take effect?

September 30, 2026. It was published as an interim final rule on August 31, 2026 (91 FR 55740), which means it becomes effective without a prior comment period; comments are open through September 30, 2026.

Does someone already in prison get credits for their old transit time?

The rule doesn't say. It removes the arrival requirement going forward but includes no retroactivity provision, and several courts have already ordered BOP to credit pre-designation time in individual habeas cases. Expect implementation guidance from BOP; meanwhile, check the FSA assessment printout after September 30 and dispute in writing if the earning start date still shows facility arrival.

Do people earn FSA credits automatically while in transit now?

No. Earning still requires successful participation in assigned programming (18 U.S.C. § 3632(d)(4)(A)). The rule removes the regulatory bar on earning before arrival; BOP's own analysis nonetheless projects the average person will gain about 24 days of credits from the transit window, so watch how BOP credits these periods in practice.

Does pretrial detention earn FSA credits under the new rule?

No. A sentence cannot commence before it is imposed, so time in custody before sentencing cannot earn FSA credits. Pre-sentence custody is handled separately as jail credit under 18 U.S.C. § 3585(b), which reduces the sentence day-for-day.

Can someone transferred from a foreign prison earn and apply FSA credits?

Yes — the amended 28 C.F.R. § 523.44(a)(3) confirms credits can be applied for a person serving a foreign-imposed sentence in BOP custody under a treaty, once the U.S. Parole Commission has determined an equivalent U.S. Code sentence under 18 U.S.C. § 4106A. BOP says this codifies its existing practice.

How do I comment on the rule?

Submit comments at regulations.gov referencing the FSA Time Credits rule (docket BOP-1183-I), or by mail to the BOP Office of General Counsel, by September 30, 2026. Comments are public — don't include personal information you wouldn't want disclosed.

Primary sources

Everything on this page is drawn from the statutes, regulations, and BOP program statements below — read them directly:

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Estimates, not promises

This page describes federal law and Bureau of Prisons policy in general terms for education. It is not legal advice, it doesn't account for the facts of any individual case, and no attorney–client relationship is created by reading it. The BOP makes all final release-date determinations. Have an attorney review anything before you file it. Built by OutDate, the federal release date calculator.