[Federal Register Volume 61, Number 3 (Thursday, January 4, 1996)]
[Rules and Regulations]
[Pages 378-379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-126]




[[Page 377]]

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Part III





Department of Justice





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Bureau of Prisons



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28 CFR Part 545



Inmate Work and Performance Pay Program; Final Rule

Federal Register / Vol. 61, No. 3 / Thursday, January 4, 1996 / Rules 
and Regulations 

[[Page 378]]


DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 545

[BOP-1027-F]
RIN 1120-AA29


Inmate Work and Performance Pay Program

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons is amending its 
regulations on inmate work and performance pay in conformance with 
revised provisions governing drug abuse treatment programs and pretrial 
inmates. In addition to making these conforming amendments, the Bureau 
is also revising various terms defined in the regulations, updating 
examples cited, and adding exception procedures pertinent to pay 
reduction and work evaluation. This amendment is intended to provide 
for the more efficient operation of Bureau institution work programs.

EFFECTIVE DATE: January 4, 1996.

ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754, 
320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General 
Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its 
regulations on Inmate Work and Performance Pay. A final rule on this 
subject was published in the Federal Register on October 1, 1984 (49 FR 
38915) and was amended on May 21, 1991 (56 FR 23478) and July 10, 1991 
(56 FR 31530). A proposed rule on the conforming provisions of the drug 
abuse treatment programs was published January 7, 1994 (59 FR 1240), 
and a final rule for those provisions was published October 21, 1994 
(59 FR 53342). A final rule for the conforming amendments to the 
provisions on pretrial inmates was published November 22, 1994 (59 FR 
60284).
    The January 7, 1994 proposed rule on drug abuse treatment programs 
(28 CFR 550, subpart F) included conforming amendments to inmate work/
program assignment (Sec. 545.23(a)) and to eligibility for performance 
pay (Sec. 545.25(d)). No comment was received on these provisions. 
These conforming amendments are being adopted as final with the 
following adjustments. Paragraph (a) of Sec. 545.20 is revised in order 
to conform to recommended Federal Register codification practice, to 
include reference to drug treatment programming, and to make consistent 
reference to education (rather than educational) program. In 
Sec. 545.21, paragraph (f) is revised to include reference to drug 
treatment programming and education programs. As proposed, 
Sec. 545.23(a) was to be amended by revising the last sentence to 
include reference to the drug treatment program. This reference is more 
accurately stated in the second sentence, and the Literacy Program is 
given as an example of program involvement mandated by either Bureau 
policy or statute. For ease of reference, the entire paragraph is 
revised. In Sec. 545.24(d), the reference to ``educational'' has been 
revised as ``education''. The provision on eligibility for performance 
pay in proposed Sec. 545.25(d) has been revised for the sake of 
simplification. Paragraph (a)(2) of Sec. 545.25 has been revised to 
include the acronym for General Education Development in the reference 
to the Bureau's literacy program. There is no change in the intent of 
these two paragraphs. In Sec. 545.26, paragraph (e)(1) is revised to 
include reference to education programs. Section 545.28 is being 
revised as an administrative measure to allow for the payment of the 
limited financial incentives authorized by the provisions of the drug 
abuse treatment programs (Sec. 550.57(a)(1)).
    The November 22, 1994 final rule on pretrial inmates removed 
references to waiver of separation because the decision to maintain 
separation in instances where the design, structure, and operation of 
the institution may make separation not practicable is made by staff. 
Section 545.23(b) accordingly has been revised to remove similar 
reference.
    Changes to the definitions in Sec. 545.21 include the following. 
The definition of inmate in paragraph (a) has been removed, because 
this definition is covered more generally in 28 CFR 500.1. A new 
paragraph (a) has been added to define the phrase ``physically and 
mentally able.'' Paragraph (c) has been revised to include Federal 
Prison Industries' acronym rather than its trade name. Paragraphs (d) 
through (g) have been redesignated as paragraphs (e) through (h) in 
order to add a new definition for ``commissary assignment.'' This 
assignment, also referenced in newly revised Sec. 545.23(a), operates 
under the Bureau's Trust Fund Division.
    In Sec. 545.26, the Bureau is adding a provision in paragraph (d) 
to make exception for a reduction in inmate pay based upon absence from 
a scheduled assignment. This exception provides the Bureau the 
flexibility to continue payment in instances where the Assistant 
Director, Correctional Programs Division deems this advisable. In 
paragraph (e), the Bureau is adding a similar provision with respect to 
work evaluations. This exception may be invoked at independent camps in 
instances where, in order to conserve staff resources, staff may 
monitor an inmate's performance on a periodic basis rather than a 
monthly basis when the inmate has received exceptional evaluations over 
an extended period.
    Because the additions to the proposed regulations either relieve a 
restriction on the inmate or are administrative in nature, the Bureau 
finds good cause for exempting the provisions of the Administrative 
Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, 
the opportunity for public comment, and a delay in the effective date. 
Members of the public may submit comments concerning this rule by 
writing to the previously cited address. These comments will be 
considered but will receive no response in the Federal Register.
    The Bureau of Prisons has determined that this rule is not a 
significant regulatory action for the purpose of E.O. 12866, and 
accordingly this rule was not reviewed by the Office of Management and 
Budget. After review of the law and regulations, the Director, Bureau 
of Prisons has certified that this rule, for the purpose of the 
Regulatory Flexibility Act (Pub. L. 96-354), does not have a 
significant impact on a substantial number of small entities.

List of Subjects in 28 CFR Part 545

    Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.

    Accordingly, pursuant to the rulemaking authority vested in the 
Attorney General in 5 U.S.C. 552(a) and delegated to the Director, 
Bureau of Prisons in 28 CFR 0.96(p), part 545 in subchapter C of 28 
CFR, chapter V is amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 545--WORK AND COMPENSATION

    1. The authority citation for 28 CFR 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 

[[Page 379]]
date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

    2. In Sec. 545.20, paragraph (a) is revised to read as follows:


Sec. 545.20  Purpose and scope.

    (a) The Bureau of Prisons operates an inmate work program within 
its institutions. To the extent practicable, the work program:
    (1) Reduces inmate idleness, while allowing the inmate to improve 
and/or develop useful job skills, work habits, and experiences that 
will assist in post-release employment; and
    (2) Ensures that activities necessary to maintain the day-to-day 
operation of the institution are completed.

Sentenced inmates who are physically and mentally able to work are 
required to participate in the work program. When approved by the 
Warden or designee, drug treatment programming, education, or 
vocational training may be substituted for all or part of the work 
program.
* * * * *
    3. In Sec. 545.21, paragraphs (a) and (c) are revised, paragraphs 
(d) through (g) are redesignated as paragraphs (e) through (h), and a 
new paragraph (d) is added and newly designated paragraph (f) is 
revised to read as follows:


Sec. 545.21  Definitions.

    (a) Physically and mentally able. For purposes of this rule, this 
shall include inmates with disabilities who, with or without reasonable 
accommodation, can perform the essential function of the work 
assignment.
* * * * *
    (c) Industry assignment. A Federal Prison Industries (FPI) work 
assignment.
    (d) Commissary assignment. A Trust Fund work assignment.
* * * * *
    (f) Part-time work assignment. A work assignment to which an inmate 
is assigned for only a portion of the scheduled work day. Part-time 
work assignments are ordinarily made in conjunction with drug treatment 
programming, education, and/or vocational training programs.
* * * * *
    4. In Sec. 545.23, paragraphs (a) and (b) are revised to read as 
follows:


Sec. 545.23  Inmate Work/Program Assignment.

    (a) Each sentenced inmate who is physically and mentally able is to 
be assigned to an institutional, industrial, or commissary work 
program. Exception shall be made to allow for inmate participation in 
an education, vocational, or drug abuse treatment program, on either a 
full or part-time basis, where this involvement is mandated by Bureau 
policy or statute (for example, the Literacy Program). Where such 
participation is not required by either policy or statute, exception 
may be made to allow an inmate to participate in an education, 
vocational, or drug abuse treatment program rather than work full-time 
upon the request of the inmate and approval of the Warden or designee.
    (b) A pretrial inmate may not be required to work in any assignment 
or area other than housekeeping tasks in the inmate's own cell and in 
the community living area, unless the pretrial inmate has signed a 
waiver of his or her right not to work (see 28 CFR part 551, subpart 
J).
* * * * *


Sec. 545.24  [Amended]

    5. In Sec. 545.24, paragraph (d) is amended by revising in the 
first sentence the word ``educational'' to read ``education''.
    6. In Sec. 545.25, paragraph (a)(2) is revised and a new paragraph 
(d) is added to read as follows:


Sec. 545.25  Eligibility for performance pay.

    (a) * * *
    (2) Literacy program (GED) participation;
* * * * *
    (d) An inmate who refuses participation, withdraws, is expelled, or 
otherwise fails attendance or examination requirements of the drug 
abuse education course shall be held at the lowest pay grade (Grade 4).
    7. In Sec. 545.26, paragraphs (d), (e) introductory text, and 
(e)(1) are revised to read as follows:


Sec. 545.26  Performance pay provisions.

* * * * *
    (d) An inmate is eligible to receive performance pay only for those 
hours during which the inmate is actually performing satisfactory work 
or actively participating in an education or vocational training 
program. Absences from an inmate's scheduled assignment for such 
reasons as call-outs, visits, sick call, interviews, or making 
telephone calls shall be deducted from the monthly number of hours 
worked and will accordingly reduce the amount of pay received by the 
inmate. Any exception to such reduction in pay must be approved by the 
Assistant Director, Correctional Programs Division, Central Office.
    (e) Work Evaluation. At the end of each month the work detail/
program supervisor shall compute on an evaluation form the hours worked 
by the inmate and the pay to be awarded. The supervisor shall also rate 
the inmate's performance over the past month in each of several 
categories. For example, an inmate may be rated in such categories as 
quality of work, quantity of work, initiative, ability to learn, 
dependability, response to supervision and instruction, safety and care 
of equipment, ability to work with others, and overall job proficiency. 
Any exception to the work performance evaluation procedures cited above 
requires approval of the Assistant Director, Correctional Programs 
Division, Central Office.
    (1) An inmate shall receive performance pay only for those hours 
during which the inmate is satisfactorily performing work or is 
actively participating in an education/vocational program.
* * * * *
    8. Section 545.28 is revised to read as follows:


Sec. 545.28  Achievement awards.

    (a) With prior approval of the Education Department, each inmate 
who completes the Literacy program, Vocational Training, or related 
trades classroom work that is part of a certified apprenticeship 
program may be granted an achievement award from performance pay funds.
    (b) With prior approval of the Psychology Services Department, each 
inmate who is making satisfactory progress or completes a residential 
drug treatment program may also be granted an achievement award from 
performance pay funds.

[FR Doc. 96-126 Filed 1-3-96; 8:45 am]
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