Literacy Program

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 544

[BOP-1036-I]

RIN 1120-AA33

Literacy Program

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule.

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SUMMARY: In this document, the Bureau of Prisons is revising its

regulations on the literacy program on an interim basis in order to

include a definition of ``satisfactory progress''. This definition is

one determinant which is statutorily required for the awarding and/or

vesting of good conduct time for certain inmates. In implementing this

change, the Bureau has further revised its regulations on the literacy

program for the sake of clarification or simplification.

DATES: Effective November 3, 1997; comments must be submitted by

November 25, 1997.

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 adopting interim

regulations on its literacy program for inmates. A final rule on the

literacy program was published in the Federal Register May 1, 1991 (56

FR 20089), and was corrected on March 17, 1992 (57 FR 9211).

[[Page 50792]]

The Bureau's literacy program, which uses the General Educational

Development (GED) credential as the equivalence for a high school

diploma, requires participation from inmates who are not able to

demonstrate the achievement of a GED credential or a high school

diploma, with certain stated exceptions. Section 20412 of the Violent

Crime Control and Law Enforcement Act of 1994 (VCCLEA) requires, among

other things, that credit toward an inmate's service of sentence shall

not be vested unless the inmate has earned or is making satisfactory

progress toward a high school diploma or an equivalent degree. Under

the Comprehensive Crime Control Act, good conduct time vested annually.

Section 809 of the Prison Litigation Reform Act of 1995 (PLRA)

requires, among other things, that credit toward an inmate's service of

sentence shall vest on the date the inmate is released from custody,

and that in awarding credit, the Bureau shall consider whether the

prisoner, during the relevant period, has earned, or is making

satisfactory progress toward earning, a high school diploma or an

equivalent degree. A separate rulemaking published elsewhere in today's

Federal Register addresses the discretion of the Bureau in awarding

good conduct time credit to an inmate subject to PLRA (i.e., an inmate

whose offense was committed on or after April 26, 1996).

In this document the Bureau is amending its regulations on the

literacy program in order to include a definition of what constitutes

satisfactory progress toward earning a GED credential. As defined in

newly revised Sec. 544.73(b), an inmate subject to VCCLEA or PLRA shall

be deemed to be making satisfactory progress toward earning a GED

credential or high school diploma unless and until the inmate receives

a progress assignment confirming that the inmate refuses to enroll in

the literacy program, that the inmate has been found to have committed

a prohibited act that occurred in a literacy program during the last

240 instructional hours of the inmate's most recent enrollment in the

literacy program, or that the inmate has withdrawn from the literacy

program. When an inmate subject to VCCLEA or PLRA receives a progress

assignment indicating that he or she is not making satisfactory

progress, this assignment shall not be changed to indicate that the

inmate is making satisfactory progress until the inmate is currently

and continuously enrolled in a literacy program for a minimum of 240

instructional hours. Any further withdrawal or finding that the inmate

committed a prohibited act that occurred in a literacy program during

the last 240 instructional hours of the inmate's most recent enrollment

in the literacy program shall result in a progress assignment

indicating that the inmate is again not making satisfactory progress.

Further revisions to the Bureau's regulations on the literacy

program made for the sake of clarification or simplification are

described below.

Previously, regulations in Sec. 544.70 had specified that the

minimum time required for participation is 120 calendar days or until a

GED credential is achieved, whichever occurs first. Based upon the

results of past program experience, 120 calendar days has been shown to

provide sufficient time for the average inmate to achieve a GED

credential. As revised, the Bureau has chosen to restate the time frame

for minimum required participation in terms of instructional hours

(i.e., 240 instructional hours is the equivalent of 120 calendar days).

As revised, the statement of purpose and scope includes reference to

exceptions stated in new Sec. 544.71. Redundant references in

Sec. 544.70 to incentives have been removed.

Section 544.71 has been revised as a more clear statement of

exceptions to mandatory participation. Paragraph (a)(2) contains

additional statutory reference for study and observation cases. The

exception for ``good cause'' formerly contained in paragraph (a)(4) has

been replaced with more specific provisions in new paragraphs (a)(4)

and (b). New paragraph (a)(4) allows for staff to make exceptions on a

temporary basis due to special circumstances. Special circumstances

(including, but not limited to, medical reasons, transfer on writ,

being on the waiting list for initial placement) may make it

temporarily impracticable to participate in the literacy program. Once

the special circumstances are no longer applicable, the inmate shall be

required to participate in the literacy program. The exception in new

paragraph (b) is based upon the existence of an emotional, mental, or

physical impediment to learning which has been documented through

formal diagnostic assessment.

The provisions in former Secs. 544.72 and 544.74 on work promotions

and assignments have been consolidated and revised in a new Sec. 544.74

as noted below. New Sec. 544.72 contains the provisions on incentives

formerly contained in Sec. 544.75.

The provisions in Sec. 544.73 have been revised to include the

definition of satisfactory progress as noted above.

New Sec. 544.74 consolidates provisions on work promotion and

assignments contained in former Secs. 544.72 and 544.74. These

provisions have been revised for the sake of clarity. The revised

provisions clarify that covered assignments above grade 4 include

commissary positions. The revised provisions no longer stipulate that

withdrawal from the literacy program may be used as the basis to remove

an inmate appointed to a grade 4 position pursuant to new

Sec. 544.74(a)(1).

Section 544.75 has been revised to remove specific reference to

calendar days. As noted above, the regulations state this period, where

necessary, in terms of instructional hours.

The Bureau is publishing this regulation as an interim rule in

order to solicit comment on a working definition of ``satisfactory

progress'' without unnecessary delay in applying the definition to

procedures for vesting and awarding good conduct time. As noted above,

other changes in the regulations affect clarity or organization.

Members of the public may submit comments concerning this rule by

writing to the previously cited address. Comments received before

expiration of the deadline will be considered before the rule is

finalized. Comments received after expiration of the deadline will be

considered to the extent practicable.

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 pursuant to E.O. 12866. 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 (5 U.S.C. 601 et seq.), does

not have a significant economic impact on a substantial number of small

entities, within the meaning of the Act. Because this rule pertains to

the correctional management of offenders committed to the custody of

the Attorney General or the Director of the Bureau of Prisons, its

economic impact is limited to the Bureau's appropriated funds.

List of Subjects in 28 CFR Part 544

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 544 in subchapter C of 28

CFR, chapter V is amended as set forth below.

[[Page 50793]]

Subchapter C--Institutional Management

PART 544--EDUCATION

1. The authority citation for 28 CFR part 544 continues to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,

4081, 4082 (Repealed in part as to offenses committed on or after

November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to

offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28

CFR 0.95-0.99.

2. Subpart H of part 544 is revised to read as follows:

Subpart H--Literacy Program

Sec.

544.70 Purpose and scope.

544.71 Exceptions to required literacy program participation.

544.72 Incentives.

544.73 Program participation.

544.74 Work assignment limitations.

544.75 Disciplinary action.

Subpart H--Literacy Program

Sec. 544.70 Purpose and scope.

Except as provided for in Sec. 544.71, an inmate confined in a

federal institution who does not have a verified General Educational

Development (GED) credential or high school diploma is required to

attend an adult literacy program for a minimum of 240 instructional

hours or until a GED is achieved, whichever occurs first.

Sec. 544.71 Exceptions to required literacy program participation.

(a) The following inmates are not required to attend the literacy

program:

(1) Pretrial inmates;

(2) Inmates committed for purpose of study and observation under

the provisions of 18 U.S.C. 4205(c), 4241(d), or, effective November 1,

1987, 18 U.S.C. 3552(b);

(3) Sentenced deportable aliens;

(4) Inmates determined by staff to be temporarily unable to

participate in the literacy program due to special circumstances beyond

their control (e.g., due to a medical condition, transfer on writ, on a

waiting list for initial placement). Such inmates, however, shall be

required to participate when the special circumstances are no longer

applicable.

(b) Inmates who have been determined (on the basis of formal

diagnostic assessment) to have a documented emotional, mental, or

physical individual impediment to learning shall not be required to

complete the literacy program beyond those achievement levels indicated

as realistic by the formal diagnostic assessment.

(c) Staff shall document in the inmate's education file the

specific reasons for not requiring the inmate to participate in, or to

complete, the literacy program.

Sec. 544.72 Incentives.

The Warden shall establish a system of incentives to encourage an

inmate to obtain a GED credential.

Sec. 544.73 Program participation.

(a) The Warden or designee shall assign to an education staff

member the responsibility to coordinate the institution's literacy

program. Initially, staff shall meet with the inmate for the purpose of

enrolling the inmate in the literacy program. Subsequently, staff shall

formally interview each inmate involved in the literacy program when

necessary for the purpose of determining a progress assignment. Staff

shall place documentation of these interviews in the inmate's education

file.

(b)(1) For the purposes of 18 U.S.C. 3624, an inmate subject to the

Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) or the

Prison Litigation Reform Act of 1995 (PLRA) shall be deemed to be

making satisfactory progress toward earning a GED credential or high

school diploma unless and until the inmate receives a progress

assignment confirming that:

(i) The inmate refuses to enroll in the literacy program;

(ii) The inmate has been found to have committed a prohibited act

that occurred in a literacy program during the last 240 instructional

hours of the inmate's most recent enrollment in the literacy program;

or

(iii) The inmate has withdrawn from the literacy program.

(2) When an inmate subject to VCCLEA or PLRA receives a progress

assignment indicating that the inmate is not making satisfactory

progress, the assignment shall be changed to indicate satisfactory

progress only after the inmate is currently and continuously enrolled

in a literacy program for a minimum of 240 instructional hours. Any

further withdrawal or finding that the inmate has committed a

prohibited act in a literacy program during the last 240 instructional

hours of the inmate's most recent enrollment in the literacy program

shall result in a progress assignment indicating that the inmate is

again not making satisfactory progress (see paragraphs (b)(1)(ii) and

(iii) of this section).

(c) At the end of 240 instructional hours, excluding sick time,

furloughs, or other absences from scheduled classes, the unit team

during scheduled program review sessions shall meet with the inmate to

encourage continued participation in the literacy program until the

inmate earns a GED credential or high school diploma. At these

meetings, the inmate may elect not to continue in the literacy program,

and no disciplinary action will be taken. The inmate may not

discontinue this program when participation is mandated by statute.

Sec. 544.74 Work assignment limitations.

These limitations on work assignment appointment and promotion

apply to all inmates, including those exempted from required

participation in the literacy program by Sec. 544.71.

(a) Appointment. (1) An inmate who does not meet the literacy

requirement may be assigned to a grade 4 position contingent upon the

inmate's continued enrollment in the literacy program.

(2) An inmate ordinarily must show prior attainment of a GED

credential or high school diploma in order to be considered for a

commissary work assignment above minimum pay level, an institution work

assignment above grade 4 compensation, or an industrial work assignment

above grade four or in a non-graded incentive pay position.

(3) If labor force needs require, an inmate who does not meet the

literacy requirement may be assigned to an industrial non-graded

incentive pay position if the inmate is simultaneously enrolled in a

literacy or related program. Withdrawal from the literacy program shall

result in termination of the assignment. Local Federal Prison Industry

(FPI) management may elect to retain the reassigned inmate in an hourly

rated grade 4 position.

(b) Promotion. An inmate ordinarily must show prior attainment of a

GED credential or high school diploma to be promoted above the minimum

pay level or grade in a commissary work assignment, an institutional

work assignment, or an industrial work assignment. An inmate already in

an assignment above the minimum pay grade who had met prior literacy

requirements when approved for promotion is eligible for further

promotion under the prior standard. Such inmate, however, must meet the

current standard if, due to demotion based upon a poor performance

appraisal, he or she needs to reapply for a promotion.

(c) Exceptions. The Warden may, for good cause, exempt inmates on a

case-by-case basis, from the literacy requirements for work assignment

appointment and promotion. Staff shall document such exemption in the

inmate's education file and central file.

[[Page 50794]]

Sec. 544.75 Disciplinary action.

As with other mandatory programs, such as work assignments, staff

may take disciplinary action against an inmate lacking a GED credential

or high school diploma if that inmate refuses to enroll in, and to

complete, the mandatory 240 instructional hours of the literacy

program.

[FR Doc. 97-25534 Filed 9-25-97; 8:45 am]

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