[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Proposed Rules]
[Pages 77064-77066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24619]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 345 and 545

[Docket No. BOP-1181-P]
RIN 1120-AB81


Reservation of Funds for Reentry Under the First Step Act

AGENCY: Bureau of Prisons, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Prisons (BOP) proposes to add a regulation 
implementing a provision of the First Step Act (FSA) that requires 
Federal Prison Industries (FPI) and the BOP to reserve a portion of the 
compensation inmates would otherwise receive for working to assist 
these inmates with costs associated with release from prison upon 
completion of their sentence through release from custody, placement in 
pre-release custody (e.g., home confinement or Residential Reentry 
Center), or conditional release.

DATES: Electronic comments must be submitted, and written comments must 
be postmarked, no later than 11:59 p.m. Eastern Time on January 8, 
2024.

ADDRESSES: Please submit electronic comments through the 
regulations.gov website, or mail written comments to the Legislative & 
Correctional Issues Branch, Office of General Counsel, Bureau of 
Prisons, 320 First Street NW, Washington, DC 20534.

[[Page 77065]]


FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant 
General Counsel, Federal Bureau of Prisons, (202) 353-4885.

SUPPLEMENTARY INFORMATION: Please note that all comments received are 
considered part of the public record and made available for public 
inspection online at www.regulations.gov. If you want to submit 
personal identifying information (such as your name, address, etc.) as 
part of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You must also locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
contains so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT section.

I. Discussion of the Proposed Rule

    In this document, the BOP proposes to modify regulations on 
compensation for FPI inmate workers in 28 CFR part 345 and on inmate 
work and performance pay in part 545 to conform with recent legislative 
changes enacted in the First Step Act of 2018 (FSA), Public Law 115-
391, December 21, 2018, 132 Stat 5194. Section 605(c) of the FSA amends 
18 U.S.C. 4126(c)(4) to indicate that inmates compensated under this 
section shall have at least 15 percent of their compensation reserved 
and made available to assist them with costs associated with release 
from prison.
    The section amended by the FSA, 18 U.S.C. 4126, is entitled 
``Prison Industries Fund; use and settlement of accounts,'' and the 
amended subparagraph (c) refers to ``Federal Prison Industries'' (FPI) 
as the ``corporation'' and the ``Prison Industries Fund'' as ``the 
fund.'' See 18 U.S.C. 4126(a). Subparagraph (c)(4) was amended to 
indicate that FPI ``is authorized to employ the fund . . .'' to pay 
``compensation to inmates employed in any industry, or performing 
outstanding services in institutional operations, not less than 15 
percent of such compensation for any inmate shall be reserved in the 
fund or a separate account and made available to assist the inmate with 
costs associated with release from prison . . . .'' See 18 U.S.C. 
4126(c)(4).
    The FSA therefore authorizes FPI to pay inmates who are ``employed 
in any industry.'' As provided in 28 CFR 345.10, the BOP strives to 
provide work to all inmates confined in BOP facilities to the extent 
practicable in order to allow inmates to gain knowledge, skills, and 
work habits to assist them upon release. Although there is no statutory 
requirement that inmates be paid for work in an industrial assignment, 
18 U.S.C. 4126 provides for discretionary compensation to inmates 
employed by FPI. Section 345.50 further indicates that, in accordance 
with 18 U.S.C. 4126, FPI provides compensation to FPI inmate workers.
    The FSA also amended 18 U.S.C. 4126(c)(4) by directing that ``not 
less than 15 percent'' of compensation paid to inmates ``performing 
outstanding services in institutional operations'' should also be 
``reserved in the fund or a separate account and made available to 
assist the inmate with costs associated with release from prison.''
    The new provision added by the FSA in 18 U.S.C. 4126(c)(4) requires 
the reservation of 15 percent of ``such compensation'' to be made 
available for an inmate's costs associated with prison release. 
Therefore, the FSA mandates that FPI must reserve 15 percent of the 
compensation that is paid to inmates employed by FPI, under 28 CFR part 
345, to be made available to those inmates for costs associated with 
their release from prison. The FSA further mandates that the BOP must 
reserve 15 percent of performance pay, bonus pay, and special bonus 
pay, under 28 CFR part 545, to be made available to those inmates for 
costs associated with their release from prison.
    The BOP now proposes to amend 28 CFR 345.51 regarding FPI pay, and 
545.26(e) through (g) regarding inmate performance pay, bonus pay, and 
special bonus pay, to add provisions indicating that 15 percent of an 
inmate's pay, or other amount as set by statute, will be reserved 
(i.e., encumbered) to assist the inmate with costs associated with 
release from prison. Specifically, the reserved funds will be made 
available to the inmate upon completion of their sentence through 
release from custody, placement in pre-release custody (e.g., home 
confinement or Residential Reentry Center), or conditional release. 
Holding the funds until the inmate leaves BOP secure custody via one of 
the previously mentioned ways will ensure the availability of those 
funds on the inmate's first day of reentry, giving full effect to 
Congress's directive that these funds be reserved to help inmates with 
costs they will incur once they release from prison.

II. Regulatory Analyses

Executive Orders 12866 and 13563 (Regulatory Review)

    This proposed rule does not fall within a category of actions that 
the Office of Management and Budget (OMB) has determined constitutes a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866 and, accordingly, it was not reviewed by OMB. The economic impact 
of this proposed rule is limited to an existing BOP program that 
applies to sentenced inmates in the custody of the Federal Bureau of 
Prisons, and does not apply to inmates in study/observation; pretrial 
detainees; or inmates in holdover status pending designation.
    This rulemaking is necessary to implement section 605(c) of the 
FSA, codified at 18 U.S.C. 4126(c)(4). The reserved funds will remain 
in the existing Inmate Deposit Fund until an inmate completes their 
sentence through release from custody, placement in pre-release custody 
(e.g., home confinement or Residential Reentry Center), or conditional 
release.
    One of the expected benefits of this regulation is that inmates 
will be more financially prepared for reentry. The amount each inmate 
saves for reentry will vary widely based on the amount of time the 
inmate works in FPI, or works an institution job and receives 
performance, bonus, or special bonus pay. As a result of inmates' 
having additional reentry funds, the public may save on indirect 
societal costs related to inmate releases into the community. However, 
at this time the BOP cannot, with any degree of accuracy, estimate the 
monetary value of the costs and savings of this rulemaking. However, 
the BOP would expect any anticipated costs and savings generated by 
this rulemaking to have minimal effect on the economy.

[[Page 77066]]

    This proposed rule does not fall within a category of actions that 
the Office of Management and Budget (OMB) has determined constitutes a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866 and, accordingly, it was not reviewed by OMB. The economic impact 
of this proposed rule is limited to an existing BOP program that 
applies to sentenced inmates in the custody of the Federal Bureau of 
Prisons, and does not apply to inmates in study/observation; pretrial 
detainees; or inmates in holdover status pending designation.

Executive Order 13132 (Federalism)

    This regulation will not have substantial direct effect 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.

Executive Order 12988 (Plain Language)

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

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 by 
approving it 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 Federal inmates who work in FPI, 
or who work institution jobs and receive performance, bonus, or special 
bonus pay, and its economic impact is limited to moneys under the 
control of FPI or BOP.

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 (adjusted for inflation), and it 
will not significantly or uniquely affect small governments. Therefore, 
no actions are necessary under the provisions of the Unfunded Mandates 
Reform Act of 1995.

Congressional Review Act

    This regulation is not a major rule as defined by the Congressional 
Review Act, 5 U.S.C. 804.

List of Subjects in 28 CFR Parts 345 and 545

    Prisoners.

Colette S. Peters,
Director, Federal 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, Federal 
Bureau of Prisons in 28 CFR 0.96, we propose to amend 28 CFR parts 345 
and 545 as follows:

PART 345--FEDERAL PRISON INDUSTRIES (FPI) INMATE WORK PROGRAMS

0
1. The authority citation for part 345 continues to read as follows:

    Authority:  18 U.S.C. 4126, 28 CFR 0.99, and by resolution of 
the Board of Directors of Federal Prison Industries, Inc.

0
2. Amend Sec.  345.51 by redesignating paragraphs (b)(3) and (4) as 
paragraphs (b)(4) and (5), respectively, and adding a new paragraph 
(b)(3) to read as follows:


Sec.  345.51  Inmate pay.

* * * * *
    (b) * * *
    (3) Fifteen percent of each inmate's pay under this part, or other 
amount as set by statute, will be reserved to assist the inmate with 
costs associated with release from prison. The reserved funds will be 
made available to the inmate upon completion of their sentence through 
release from custody, placement in pre-release custody (e.g., home 
confinement or Residential Reentry Center), or conditional release.
* * * * *

PART 545--WORK AND COMPENSATION

0
3. The authority citation for part 545 continues to read as follows:

    Authority:  5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3572, 3621, 
3622, 3624, 3663, 4001, 4042, 4081, 4082 (Repealed in part as to 
offenses committed on or after November 1, 1987), 4126, 5006-5024 
(Repealed October 12, 1984 as to offenses committed after that 
date), 5039; 28 U.S.C. 509, 510.

0
4. Amend Sec.  545.26, by adding paragraph (e)(4), and revising 
paragraphs (f) and (g) to read as follows:


Sec.  545.26  Performance pay provisions.

* * * * *
    (e) * * *
    (4) Fifteen percent of an inmate's pay under this paragraph, or 
other amount as set by statute, shall be reserved to assist the inmate 
with costs associated with release from prison. The reserved funds will 
be made available to the inmate upon completion of their sentence 
through release from custody, placement in pre-release custody (e.g., 
home confinement or Residential Reentry Center), or conditional 
release.
    (f) Bonus pay. (1) An inmate worker or program participant may 
receive special bonus pay based on the inmate's exceptional 
accomplishments or appreciable contributions to the work assignment. 
For example, an inmate who works in excess of the scheduled work day 
may qualify for bonus pay.
    (2) When the supervisor of an inmate worker or program participant 
believes the inmate has performed exceptionally well, the supervisor 
may forward a written recommendation that the inmate received a special 
bonus, along with justification for the special bonus recommendation, 
to the Department Head for approval.
    (3) Fifteen percent of an inmate's pay under this paragraph, or 
other amount as set by statute, shall be reserved to assist the inmate 
with costs associated with release from prison. The reserved funds will 
be made available to the inmate upon completion of their sentence 
through release from custody, placement in pre-release custody (e.g., 
home confinement or Residential Reentry Center), or conditional 
release.
    (g) Special bonus pay. (1) An inmate may receive special bonus pay 
based on the inmate's exceptional work in a temporary job assignment 
that has been previously identified by the Warden, and approved by the 
Regional Director, as critical to the institution.
    (2) When the supervisor of an inmate worker believes the inmate has 
performed exceptionally well, the supervisor may forward a written 
recommendation that the inmate received a special bonus, along with 
justification for the special bonus recommendation, to the Department 
Head for approval.
    (3) Fifteen percent of an inmate's pay under this paragraph, or 
other amount as set by statute, shall be reserved to assist the inmate 
with costs associated with release from prison. The reserved funds will 
be made available to the inmate upon completion of their sentence 
through release from custody, placement in pre-release custody (e.g., 
home confinement or Residential Reentry Center), or conditional 
release.
* * * * *

[FR Doc. 2023-24619 Filed 11-7-23; 8:45 am]
BILLING CODE 4410-05-P