[Federal Register Volume 75, Number 41 (Wednesday, March 3, 2010)]
[Proposed Rules]
[Pages 9544-9548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3902]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 545
[BOP Docket No. BOP 1152-P]
RIN 1120-AB52
Inmate Work and Performance Pay Program
AGENCY: Bureau of Prisons, Justice.
ACTION: Proposed rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to
streamline regulations on inmate work and performance pay by removing
redundant language and provisions that relate solely to staff guidance.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before May 3, 2010. Commenters should be aware that
the electronic Federal Docket Management System will not accept
comments after Midnight Eastern Time on the last day of the comment
period.
ADDRESSES: Comments should be submitted to the Rules Unit, Office of
General Counsel, Bureau of Prisons, 320 First Street, NW., Washington,
DC 20534. You may view an electronic version of this rule at http://www.regulations.gov. You may also comment on this regulation via the
Internet at [email protected] or by using the http://www.regulations.gov
comment form for this regulation. When submitting comments
electronically you must include the BOP Docket No. in the subject box.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
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
http://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 Additional Information'' paragraph.
The reason that the Bureau is requesting electronic comments before
Midnight Eastern Time on the day the comment period closes is because
the inter-agency Regulations.gov/Federal Docket Management System
(FDMS) which receives electronic comments terminates the public's
ability to submit comments at Midnight on the day the comment period
closes. Commenters in time zones other than Eastern may want to take
this fact into account so that their electronic comments can be
received. The constraints imposed by the Regulations.gov/FDMS system do
not apply to U.S. postal comments which will be considered as timely
filed if they are postmarked before Midnight on the day the comment
period closes.
Discussion
In this document, the Bureau proposes to streamline regulations on
inmate work and performance pay by deleting redundant language and
provisions that relate solely to staff guidance. Below is a section-by-
section explanation of the proposed revisions.
Section 545.20 Purpose and scope. This section describes the
purpose of the Inmate Work and Performance Pay (IPP) program of the
Bureau of Prisons (Bureau). This section is derived from current Sec.
545.20(a). The second sentence of current subparagraph (a), regarding
the requirement for physically and mentally able sentenced inmates to
participate in the work program, is deleted because the concept is
repeated in the subsequent regulation. Current paragraph (b), regarding
the Warden's ability to grant performance pay to qualified inmates, is
deleted because the concept is later repeated in a regulation
exclusively devoted to performance pay.
Section 545.21 Definitions. This section derives almost verbatim
from the current Sec. 545.21, and defines terms used in the rest of
the subpart, including ``physically and mentally able,'' ``institution
work assignment,'' ``industry assignment,'' ``commissary assignment,''
and other terms.
Deleted Sec. 545.22. This section, regarding the institution work
and performance pay committee, has been deleted because it is guidance
to staff that need not be in regulation text. This current regulation
explains that the Warden at each Bureau facility establishes an
Institution Inmate Work and Performance Pay Committee to administer the
institution's work and performance pay program, comprised of an
Associate Warden, the Inmate Performance Pay Coordinator, and any other
member(s) the Warden considers appropriate. The Committee is
responsible for approving various aspects of the inmate work and
performance pay program specific to that Committee's facility,
including the number of inmates and pay grades for each work detail,
job descriptions, performance standards, budgeting issues, and other
such administrative concerns. We will retain this language in
implementing text in the relevant Bureau policy.
Section 545.22 Inmate work/program assignment. This section derives
from current Sec. 545.23. It explains that each sentenced inmate who
is physically and mentally able must participate in an institutional,
industrial, or commissary work program unless an exception applies. An
inmate may be authorized to not participate in IPP if the inmate
instead participates in an education, vocational, or drug abuse
treatment program, on either a full or part-time basis, if it is
required by Bureau policy or statute (for example, the Literacy
Program) or with the approval of the Warden or designee. An inmate may
also be excepted from IPP participation if the inmate is a pretrial
[[Page 9545]]
inmate, is otherwise unsentenced or not serving a term of imprisonment,
or is a medically unassigned inmate.
Paragraph (d) of the current Sec. 545.23 has been deleted because
it relates solely to guidance to staff. Paragraph (d) describes the
factors that staff will consider when making work and/or program
assignments. This language will be retained in the relevant Bureau
policy, which is a more appropriate vehicle for guidance to staff.
Section 545.23 Inmate work conditions. This section derives, almost
verbatim, from current Sec. 545.24. This regulation describes inmate
work conditions, such as the length of the work day, rules regarding
reporting for work, work performance, health and safety standards, and
work-related injuries.
Section 545.24 Eligibility for performance pay. This section
derives from current Sec. 545.25, and describes how an inmate may
receive performance pay. Paragraph (a) explains that an inmate may
receive performance pay for accomplishments in his/her institution work
assignment, literacy program (GED) participation, apprenticeship
training, and approved vocational training courses.
Paragraph (b) describes how the amount of performance pay to be
awarded is calculated. Generally, an inmate is eligible for performance
pay from the date of work or program assignment for each month that the
inmate's performance justifies such payment. Specific provisions
regarding portion of the month or hours worked and absences are derived
from current Sec. 545.26(d) and (d). Provisions regarding vesting and
notification of performance pay status derive from current Sec.
545.26(h) and (i).
Paragraph (c) delineates exceptions to eligibility for performance
pay. Inmates will not be eligible to receive performance pay if they
refuse to participate in the financial responsibility program; refuse
participation, withdraw, are expelled, or otherwise fail attendance or
examination requirements of the drug abuse education course; or if they
commit a level 100 or 200 series drug- or alcohol-related prohibited
act.
Removed Sec. 545.26 Performance pay provisions. Current Sec.
545.26 has been removed. Paragraph (a) of the current regulation
contains guidance to staff that is more appropriately retained in
Bureau policy. This subparagraph explains that the Warden or designee
will ensure that all institution work assignments have standardized
work descriptions, describes the four pay grade levels that inmates may
be assigned to, and lists factors to consider in assigning a grade
level to a specific work position.
Paragraph (b) allots a percentage of inmates in each Bureau
facility to each of the four pay grade levels. The vast differences
among Bureau facilities in size, population, work needs, and security
levels, make such a mandatory allotment impracticable. We will retain
recommended allotment levels in Bureau implementing text, but have
deleted this subparagraph from regulation text in recognition of the
differing needs and resources of each facility.
Paragraphs (c) and (d), regarding calculation of performance pay
based on portion of the month and hours worked, have been moved to
proposed Sec. 545.24(b). Paragraph (e), regarding work evaluation, has
been revised as proposed Sec. 545.25, described below.
Section 545.25 Work evaluation. This section derives from current
Sec. 545.26(e). Provisions regarding work evaluation have been moved
from that regulation because inmates' work will be evaluated regardless
of whether they are being considered for performance pay, and therefore
is not appropriate in Sec. 545.26, entitled ``Performance pay
provisions.''
This section explains when, how, and what work will be evaluated.
Every six months, the work detail/program supervisor will evaluate each
inmate and will document in writing only those inmates who show skills
below satisfactory level. This is a change from current regulations,
which state that an evaluation will be conducted every month. This
change is being made to emulate the community standard of biannual work
performance evaluations and to more efficiently allocate staff time.
Under the current regulations, each staff member conducting evaluations
spends approximately two to three hours per month to assess and re-
assess inmate performance when there have been few changes from month
to month. The new regulation would save approximately 20 to 30 hours a
year of each evaluator's time. Further, up-to-date information
regarding an inmate's work performance may be input in the computer
system at any time (more frequently than monthly, if warranted), and is
regularly checked and taken into account by staff responsible for
evaluating inmate work performance.
The evaluation will be based on only those hours during which the
inmate actively participated in a work assignment or an education/
vocational program. The work detail/program supervisor will rate the
inmate's performance in each of several categories, including, but not
limited to quality and 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.
A provision at the end of current Sec. 545.26(e) states that
exceptions to the work performance evaluation procedures require
approval of the Assistant Director, Correctional Programs Division,
Central Office. This provision also provides guidance to the work
detail/program supervisor regarding how to review the evaluation with
the inmate. Because this section contains guidance to staff, we propose
to delete it and retain it in implementing text in Bureau policy.
Section 541.26 Bonus pay. This section derives from Sec. 545.26(f)
and (g). This regulation explains that if the supervisor determines
that an inmate has made exceptional accomplishments or appreciably
contributed to the work assignment, the supervisor may recommend that
the inmate receive bonus pay or special bonus pay (if the work
assignment was previously identified by the Warden or designee, and
approved by the Regional Director, as critical to the institution).
Language instructing work supervisors to forward bonus pay and
special bonus pay recommendations to the facility's relevant department
head has been deleted from the proposed rule because this language is
guidance to staff that is more appropriately retained in Bureau policy.
Section 545.27 Inmate vacations. This section derives from current
Sec. 545.27. It explains that if an inmate has worked full-time for 12
consecutive months on an institution work assignment, and the work
supervisor so recommends, the inmate may take a five-day paid vacation
at the inmate's prevailing hourly rate.
Again, language instructing work supervisors to forward inmate
vacation recommendations to the facility's relevant department head
have been deleted from the proposed rule because this language is
guidance to staff that is more appropriately retained in Bureau policy.
Also deleted as staff guidance is an administrative provision
instructing work supervisors to schedule inmate vacations compatible
with the facility's work needs.
Section 545.28 Achievement awards. This section derives, almost
verbatim, from current Sec. 545.28. It explains that inmates may
receive achievement awards for completion of various approved education
programs or for
[[Page 9546]]
completion or satisfactory progress in an approved drug treatment
program.
Section 545.29 Special awards. This section derives from current
Sec. 545.29. Paragraph (a) states that inmates who perform exceptional
services not ordinarily a part of the inmate's regular assignment may
be granted a special award regardless of the inmate's work or program
status.
The proposed rule deletes language in paragraph (a) giving examples
of ``exceptional services'' that may warrant a special award. This
language has been deleted because these examples do not reflect the
broad possibilities for services that may deserve special awards, but
instead have the practical effect of limiting special awards to the
given examples.
Paragraph (b) states that the special award may be in the form of a
monetary payment in addition to any other award (e.g., extra good time)
given.
Paragraph (c) of the current regulation states that the Warden or
designee of each institution is empowered to approve special awards not
exceeding $150, and that awards in excess of this amount may not be
made unless approved by the Regional Director. This subparagraph has
been removed from the proposed rule because it is specific guidance to
the Warden and is more appropriate to retain in Bureau policy.
Section 545.30 Funds due deceased inmates. This section derives
from current Sec. 545.30, explaining that the Bureau will make unpaid
performance pay payments due a deceased inmate to a legal
representative of the inmate's estate or in accordance with the laws of
descent and distribution of the state of domicile (most recent legal
residence). This does not change the substance of current Sec. 545.30.
Deleted Sec. 545.31 Training. Current regulation Sec. 545.31
provides guidance to the Warden regarding training facility staff on
the operation of the work and performance pay program and informing
inmates of the program and pay rates. This section has been deleted
because it is guidance to Bureau staff, but will be retained in Bureau
policy.
Executive Order 12866
This rule falls within a category of actions that the Office of
Management and Budget (OMB) has determined not to constitute
``significant regulatory actions'' under section 3(f) of Executive
Order 12866 and, accordingly, it was not reviewed by OMB.
The Bureau has assessed the costs and benefits of this rule as
required by Executive Order 12866 Section 1(b)(6) and has made a
reasoned determination that the benefits of this rule justify its
costs. There will be no new costs associated with this rulemaking.
Executive Order 13132
This regulation will not have substantial direct effects 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 rule does not have sufficient Federalism
implications to warrant the preparation of a Federalism Assessment.
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 rule pertains to the correctional management of offenders
committed to the custody of the Attorney General or the Director of the
Bureau of Prisons, and its economic impact is limited to the Bureau's
appropriated funds.
Unfunded Mandates Reform Act of 1995
This rule 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, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by Sec. 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule will
not result in an annual effect on the economy of $100,000,000 or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
List of Subjects in 28 CFR Part 545
Prisoners.
Kathleen M. Kenney,
Assistant Director/General Counsel, 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, Bureau of
Prisons in 28 CFR 0.96, we propose to amend 28 CFR part 545 as set
forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 545--WORK AND COMPENSATION
1. The authority citation for 28 CFR 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.
2. Revise part 545 to read as follows:
Sec.
545.20 Purpose and scope.
545.21 Definitions.
545.22 Inmate work/program assignment.
545.23 Inmate work conditions.
545.24 Eligibility for performance pay.
545.25 Work evaluation.
541.26 Bonus pay.
545.27 Inmate vacations.
545.28 Achievement awards.
545.29 Special awards.
545.30 Funds due deceased inmates.
Sec. 545.20 Purpose and scope.
The purpose of this subpart is to explain the Inmate Work and
Performance Pay (IPP) program of the Bureau of Prisons (Bureau). The
purpose of this program is to:
(a) Reduce 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
(b) Ensure completion of activities necessary for the day-to-day
operation of the institution.
Sec. 545.21 Definitions.
(a) Physically and mentally able. For purposes of this rule, this
term includes inmates with disabilities who, with reasonable
accommodation, can perform the essential function of the work
assignment.
(b) Institution work assignment. A work assignment which
contributes to the day-to-day operation of the institution (e.g.,
carpentry, plumbing, food service).
(c) Industry assignment. A Federal Prison Industries (FPI) work
assignment.
(d) Commissary assignment. A Trust Fund work assignment.
(e) Full-time work assignment. A work assignment to which an inmate
is assigned for the entire scheduled work day.
(f) Part-time work assignment. A work assignment to which an inmate
is assigned for only a part of the scheduled work day.
[[Page 9547]]
(g) Medically unassigned. An inmate who, because of medical
restrictions, cannot be assigned to any work program.
(h) Light duty work assignment. A work assignment in which an
inmate may, because of physical limitations, temporary or otherwise,
only perform limited work functions, e.g., sedentary work, no prolonged
standing, no lifting over 25 lbs.
Sec. 545.22 Inmate work/program assignment.
(a) Each sentenced inmate who is physically and mentally able must
participate in an institutional, industrial, or commissary work program
unless one of the exceptions in (b) applies.
(b) Exceptions. An inmate may be excused from participation in IPP
if:
(1) The inmate instead participates in an education, vocational, or
drug abuse treatment program, on either a full or part-time basis, if
it is required by Bureau policy or statute (for example, the Literacy
Program) or with approval by the Warden or designee.
(2) The inmate is a pretrial inmate, or is otherwise unsentenced or
not serving a term of imprisonment, in which case the inmate may only
be assigned housekeeping tasks in his/her cell and in the community
living area. If such an inmate waives his/her right not to work, that
inmate may be allowed to participate in the IPP.
(3) The inmate is a medically unassigned inmate, in which case the
inmate may be required to perform housekeeping tasks in his/her cell
and in the community living area, to the extent medically possible.
Sec. 545.23 Inmate work conditions.
(a) Work day: The scheduled work day is ordinarily at least seven
hours.
(b) Reporting for work: Inmates must report to the place of
assignment at the required time, and may not leave an assignment
without permission.
(c) Work performance: Regardless of assignment, the inmate must
perform all assigned tasks diligently and conscientiously. Inmates may
be subject to disciplinary action for refusing to work, not showing up
for work, working poorly, or encouraging others to do so.
(d) Health and safety standards: Inmates will only participate in
work, vocational, and education programs that meet the appropriate
minimum standards for health and safety. Inmates will be provided
safety equipment as needed.
(e) Work-related injuries. Inmates must work safely, using safety
equipment as instructed by the work supervisor. If an inmate has a
work-related injury, he/she must notify the work supervisor so that
appropriate action (for example, medical attention, and submission of
necessary reports) may be taken.
Sec. 545.24 Eligibility for performance pay.
(a) Performance pay for accomplishments. An inmate may receive
performance pay for accomplishments in one or more of the following
areas:
(1) Institution work assignment;
(2) Literacy program (GED) participation;
(3) Apprenticeship training; and
(4) Vocational training courses (approved by the Bureau as
certified vocational training).
(b) Calculating amount of performance pay to be awarded. (1) Date
of work/program assignment. An inmate is eligible for performance pay
from the date of work or program assignment for each month that the
inmate's performance justifies such payment.
(2) Portion of month worked. An inmate may receive performance pay
only for that portion of the month that the inmate was working.
Performance pay may not be awarded retroactively.
(3) Hours worked. 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.
(4) Absences. Absences from an inmate's scheduled assignment for
such reasons as call-outs, visits, sick call, interviews, or making
telephone calls, will be deducted from the monthly number of hours
worked and will accordingly reduce the amount of pay received by the
inmate.
(5) Vesting. An inmate's performance pay, once earned, becomes
vested.
(6) Notification. Each inmate in performance pay status shall be
notified of monthly earnings.
(c) Exceptions to eligibility for performance pay--(1) Refusal to
participate in the financial responsibility program. An inmate who
refuses to participate in the financial responsibility program will not
ordinarily receive performance pay above the maintenance pay level, or
bonus pay, or vacation pay in accordance with 28 CFR part 545, subpart
B.
(d) Failure to comply with requirements of the drug abuse education
course. An inmate who refuses participation, withdraws, is expelled, or
otherwise fails attendance or examination requirements of the drug
abuse education course or the RDAP is subject to the limitations
specified in Sec. 550.51(e) or Sec. 550.53(g) of this chapter.
(e) Commission of a level 100 or 200 series drug- or alcohol-
related prohibited act. Inmates receiving performance pay who are found
through the disciplinary process (Part 541 of this subchapter) to have
committed a level 100 or 200 series drug- or alcohol-related prohibited
act will automatically have their performance pay reduced to
maintenance pay level and will be removed from any assigned work detail
outside the secure perimeter of the institution. This reduction to
maintenance pay level will ordinarily remain in effect for one year,
unless otherwise authorized by the Warden or designee.
Sec. 545.25 Work evaluation.
(a) When work will be evaluated: The work detail/program supervisor
will evaluate each inmate at a minimum of every six months.
(b) What work will be evaluated: The evaluation will be based on
only those hours during which the inmate actively participated in a
work assignment or an education/vocational program.
(c) How work will be evaluated: The work detail/program supervisor
will rate the inmate's performance in each of several categories,
including, but not limited to the following: quality and 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.
Sec. 541.26 Bonus pay.
(a) Bonus pay. If the supervisor determines that an inmate has made
exceptional accomplishments or appreciably contributed to the work
assignment, the supervisor may recommend that the inmate receive bonus
pay.
(b) Special bonus pay. An inmate may be recommended to receive
special bonus pay based on exceptional work in a temporary job
assignment if the assignment was previously identified by the Warden or
designee, and approved by the Regional Director, as critical to the
institution.
Sec. 545.27 Inmate vacations.
(a) Eligibility for a vacation: If an inmate has worked full-time
for 12 consecutive months on an institution work assignment, and the
work supervisor so recommends, the inmate may take a five-day paid
vacation at the inmate's prevailing hourly rate.
(b) Accumulation of vacation credit. The Warden or designee may
authorize
[[Page 9548]]
an inmate to accumulate vacation credit when:
(1) The inmate is transferred to another institution for the
benefit of the government or because of the inmate's favorable
adjustment (custody reduction); or
(2) The inmate is placed in a new work assignment in the
institution for the benefit of the government or institution, rather
than solely at the inmate's request or because of the inmate's poor
performance or adverse behavior.
Sec. 545.28 Achievement awards.
Inmates may receive achievement awards in the following manner:
(a) Education program completion. 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) Drug treatment satisfactory progress/completion. 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.
Sec. 545.29 Special awards.
Inmates who perform exceptional services not ordinarily a part of
the inmate's regular assignment may be granted a special award
regardless of the inmate's work or program status. The special award
may be in the form of a monetary payment in addition to any other award
(e.g., extra good time) given.
Sec. 545.30 Funds due deceased inmates.
If performance pay is due to a deceased inmate for work performed
and not yet paid, the Bureau will make the payment to a legal
representative of the inmate's estate or in accordance with the laws of
descent and distribution of the state of domicile (most recent legal
residence).
[FR Doc. 2010-3902 Filed 3-2-10; 8:45 am]
BILLING CODE 4410-05-P