Inmate Work and Performance Pay Program

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]

BILLING CODE 4410-05-P