dissenting.
I respectfully dissent from the majority’s conclusion that the Bureau of Prisons (“BOP”) abused its rulemaking authority when, in 2005, it promulgated a rule (the “February 2005 Rule”) allowing the designation of inmates “to community confinement only as part of pre-release custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community.” 28 C.F.R. § 570.20(a) (emphasis added). As part of this rule, the BOP will designate inmates to community confinement centers (“CCCs”) “only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months.” Id. § 570.21(a); see also 18 U.S.C. § 3624(c). It will “exceed these time-frames only when specific Bureau programs allow greater periods of community confinement, as provided by separate statutory authority (for example, residential substance abuse treatment program (18 U.S.C. § 3621(e)(2)(A))), or shock incarceration program (18 U.S.C. § 4046(c)).” 28 C.F.R. § 570.21(b).
Levine contends, and my colleagues in the majority agree, that this rule violates the relevant statutory authority set forth in 18 U.S.C. § 3621(b). In pertinent part, § 3621(b) provides:
The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available *88penal or correctional facility that ... the Bureau determines to be appropriate and suitable, considering—
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence—
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
18 U.S.C. § 3621(b). The majority concludes that the BOP’s February 2005 Rule impermissibly “edit[s]” 18 U.S.C. § 3621(b), substituting a single factor — the portion of time served — for the five factors specified in the statute for BOP consideration when designating or transferring federal prisoners. Ante at [84-85]. I construe the rule somewhat differently, specifically, as a permissible categorical rejection of CCCs as appropriate and suitable facilities for § 3621(b) designations generally, with a limited exception only for those circumstances where Congress has identified statutory considerations pursuant to 18 U.S.C. §§ 3621(e)(2)(A), 3624(c), or 4046(c), in addition to those catalogued in § 3621(b).
As the majority appears to acknowledge, nothing in § 3621(b) requires the BOP to establish CCCs or to recognize them as appropriate and suitable correctional facilities for the service of incarcera-tory sentences. See ante at [82-83] n. 8. Nevertheless, the majority concludes that, because the BOP does employ CCCs “as part of pre-release custody and programming,” 28 C.F.R. § 570.20, it must consider CCCs in making every prisoner designation under § 3621(b). The majority reasons: “[T]he BOP has not closed CCCs, thus dropping them from the roster of available ‘place[s] of imprisonment,’ i.e., ‘penal or correctional facilities.’ And, since they are available, the BOP must comply with the factors made mandatory by Congress in assigning prisoners to them.” Ante at [83] n. 8 (quoting 18 U.S.C. § 3621(b)) (emphasis in original).1 I cannot agree.
First, I do not understand that, under the February 2005 Rule, the BOP will cease considering all five § 3621(b) factors in making any inmate placement. The rule does not eliminate § 3621(b) factors from any placement consideration; rather, it eliminates a particular type of facility— CCCs — from among those to which a prisoner can be designated when only the five § 3621(b) factors inform the BOP’s placement decision.
Second, to the extent the rule does allow CCC placements within a narrow time frame — “during the last ten percent of the prison sentence being served, not to exceed six months,” 28 C.F.R. § 570.21(a)— the exception identifies no arbitrary period, but rather one in which the BOP operates under a specific congressional man*89date. Title 18 U.S.C. § 3624(c) states that, for purposes of “Pre-release custody”:
The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner’s re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement.
18 U.S.C. § 8624(c) (emphasis added). Plainly, this statute identifies a penalogical goal — helping prisoners prepare for their reentry into the community — that, significantly, is not mentioned in § 3621(b). See generally Goldings v. Winn, 383 F.3d 17, 23 (1st Cir.2004) (noting that § 3624(c) “operates as a legislative directive focusing on the development of conditions to facilitate an inmate’s adjustment to free society” (internal quotation marks omitted)). Pursuant to § 3624(c), however, the BOP must serve this community reentry goal only during a particular part of an inmate’s incarceratory term: the last ten percent of a prison sentence, not to exceed six months.
In light of this statutory scheme, the BOP might well conclude that (1) it does not generally consider CCCs appropriate and suitable facilities for the service of incarceratory sentences; nevertheless (2) these facilities, which are, after all, designed to promote community reentry, can usefully serve the § 3624(c) mandate. Pursuant to such conclusions, the BOP might, as it did here, promulgate a rule that categorically excludes CCCs from among the “available penal and correctional facilities]” to which it may designate or transfer prisoners, except when the BOP strives to meet other statutory obligations, such as the time-specific reentry mandate of § 3624(c). See generally Community Confinement, Proposed Rule, 69 Fed.Reg. 51,213, 51,214 (Aug. 18, 2004) (noting that challenged regulations were “supported by consideration of the congressional statutory policy as reflected in related statutory provisions,” and stating that “[w]hether or not Section 3624(c) precludes the Bureau from designating a prisoner to community confinement for longer than the lesser of the last ten percent of the sentence or six months, it is consistent with the congressional policy reflected in that section for the Bureau to exercise its discretion to decline to designate a prisoner to community confinement for longer than that time period”).
Third, unlike my colleagues in the majority, I think the BOP’s categorical rejection of CCCs for general § 3621(b) designations (ie., placements not involving § 3624(c) or other statutory concerns) does find support in Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). In Lopez, the Supreme Court upheld a BOP rule categorically eliminating some inmates — those with certain prior convictions, see 28 C.F.R. § 550.58(a)(l)(vi)(B)— from discretionary early release eligibility after successful completion of a drug treatment program under 18 U.S.C. § 3621(e)(2)(B).2 In allowing the BOP to promulgate a rule categorically exercising its discretion, the Court noted that the statute, § 3621(e)(2)(B), was silent about how the BOP was to exercise its discretion. See Lopez v. Davis, 531 U.S. at 242, 121 S.Ct. 714 (noting that “[b]eyond instructing that the Bureau has discretion to *90reduce the period of imprisonment for a nonviolent offender who successfully completes drug treatment, Congress has not identified any further circumstance in which the Bureau either must grant the reduction, or is forbidden to do so”). It concluded that, under such circumstances, the BOP regulation “filled the statutory gap in a way that was reasonable in light of the legislature’s revealed design.” Id. (internal quotation marks omitted). Further, and perhaps more relevant to this case, the Court observed that, “ ‘[e]ven if a statutory scheme requires individualized determinations,’ ” which was not the case in Lopez, “ ‘the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.’ ” Id. at 243-44, 121 S.Ct. 714 (quoting American Hosp. Ass’n v. NLRB, 499 U.S. 606, 612, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991)); see Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (holding that an agency may rely on rulemaking to “resolve certain classes of issues” despite the fact that the statute calls for individualized decisionmaking, noting that to hold otherwise “would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding”). This reasoning supports the BOP’s authority categorically to conclude that certain facilities, such as CCCs, are generally inappropriate and unsuitable for § 3621(b) placement, even though they can be useful when the BOP strives to achieve statutory goals in addition to those specified in § 3621(b).
The majority attempts to distinguish Lopez by noting that § 3621(b), unlike the statute at issue in Lopez, “establishes clear parameters for the BOP’s exercise of discretion.” Ante at [87]; see Lopez v. Davis, 531 U.S. at 242, 121 S.Ct. 714. It concludes that, where, as here, Congress has established such parameters for an agency’s exercise of discretion, the “agency may not promulgate categorical rules that do not take account of the categories that are made significant by Congress.” Ante at [85], Because the majority concludes that, in promulgating the February 2005 Rule, the BOP “selectively” implemented “the instructions given by § 3621(b), ... picking and choosing those factors that it deems most compelling,” it holds the rule invalid. Ante at [85].
I do not understand the BOP selectively to have implemented the § 3621(b) factors in categorically rejecting CCCs for general prison designations. In its notice of proposed rulemaking, the BOP stated that “[i]n deciding to limit inmates’ community confinement to the last ten percent of the prison sentence, the Bureau has carefully considered all of the statutorily-specified factors.” See Community Confinement, Proposed Rule, 69 Fed.Reg. at 51,214. I would not reject this representation simply because the BOP did not discuss each § 3621(b) factor in its rule notice. Cf. United States v. Fernandez, 443 F.3d 19, 30 (2d Cir.2006) (noting that, in context of sentencing judge’s consideration of § 3553(a) factors, “in the absence of record evidence suggesting otherwise,” this court will “presume ... that a sentencing judge has faithfully discharged her duty to consider the statutory [sentencing] factors”). As the majority acknowledges, the notice explicitly discusses two of the statutory factors, facility resources and policy statements of the Sentencing Commission, as well as the general prohibition in § 3621(b) of favoritism for inmates of high social or economic status. See Community Confinement, Proposed Rule, 69 Fed.Reg. at 51,-214; ante at [85 - 86] n. 9. Like a number of district judges in this circuit, I construe the BOP’s emphasis on these factors, in *91kght of its represented consideration of all factors, to indicate that “the BOP has determined that [these discussed] factors categorically outweigh any of the other factors in § 3621(b) which might tend toward earlier CCC placement in an individual case.” Troy v. Apker, No. 05-1306, 2005 WL 1661101, at *2 (S.D.N.Y. June 30, 2005) (Lynch, J.); see also, e.g., Charboneau v. Menifee, No. 05-1900, 2005 WL 2385862, at *6 (S.D.N.Y. Sept.28, 2005) (Mukasey, C.J.) (“Even assuming that the BOP explicitly considered only two of the five statutory factors, its designation of those factors as ‘most significant’ conveys an implicit judgment that such factors outweighed any other considerations, statutory or otherwise.”); Moss v. Apker, 376 F.Supp.2d 416, 424 (S.D.N.Y.2005) (Marrero, J.) (“Nothing in § 3621(b) regulates the weight that the BOP must give to each of the factors enumerated by the statute, even if the statute were read to require BOP to give at least some consideration to each factor”) (emphasis in original).
Unlike the majority, I do not think this conclusion is foreclosed by the fact that three of the § 3621(b) factors — the nature of and circumstances of the prisoner’s offense, the history and characteristics of the prisoner, and any statement by the court that imposed the sentence — -are “specific to individual prisoners” and, thus “considering these factors entails individualized decisions.” Ante at [86], As previously observed, Lopez specifically concluded that, “[e]ven if a statutory scheme requires individualized determinations, the decision-maker has the authority to rely on rule-making to resolve certain issues of genéral applicability.” Lopez v. Davis, 531 U.S. at 243-44, 121 S.Ct. 714 (internal quotation marks omitted). The BOP’s identification of those facilities that will be considered in making general prison designations — ie., designations not informed by statutory mandates in addition to § 3621(b) — falls within the realm of “general applicability.” The BOP might reasonably conclude, as it implicitly did here, that, regardless of an individual prisoner’s offense, history, and personal characteristics, or any statement made by a sentencing judge, other factors such as the limited availability of CCC resources, the particular suitability of CCCs to other statutory mandates, the policy statements of the Sentencing Commission, and the statutory prohibition on social and economic favoritism, combine to warrant a categorical rule excluding CCC facilities from consideration in general § 3621(b) designations. Whatever the merits of this rule, it does not alter the applicability of § 3621(b)’s five factors when the BOP designates prisoners to those facilities that are deemed suitable, either generally pursuant to § 3621(b) or specifically pursuant to other statutory mandates. Accordingly, I do not consider the February 2005 Rule an invalid exercise of the BOP’s rulemaking authority.
Were I in the majority in holding this view, it would perhaps be necessary to discuss further why I consider appellant’s and amici’s other challenges unconvincing. Because I express a minority view and because the majority does not discuss these other arguments, I do not pursue these points in dissent.
. This reasoning suggests that the BOP could not categorically exclude CCCs from consideration in any designation decision, even the initial placement of prisoners convicted of murder or sentenced to terms of life imprisonment. However remote the likelihood of such an obviously inappropriate and unsuitable placement in such circumstances, today's decision appears to preclude the BOP from categorically excluding those facilities from consideration.
. Section 3621(e)(2)(B) provides that the BOP may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony, if the prisoner successfully completes a substance abuse program. See 18 U.S.C. § 3621(e)(2)(B).