[Federal Register Volume 65, Number 183 (Wednesday, September 20, 2000)]
[Proposed Rules]
[Pages 56840-56843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24052]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 545 and 550

[BOP-1093-P]
RIN 1120-AA88


Drug Abuse Treatment Programs: Participation Requirements

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons is proposing to amend 
its regulations on participation requirements for the drug abuse 
education course and the institution residential drug abuse treatment 
program. The amendment clarifies the distinction between mandatory and 
voluntary participation in the drug abuse education course, removes 
eligibility limitations pertaining to cognitive impairments and 
learning disabilities, and addresses the effects of non-participation 
both in the drug abuse education course and in the institution 
residential drug abuse treatment program. This amendment is intended to 
encourage inmates to take advantage of the Bureau's drug treatment 
programs.

DATES: Comments due by November 20, 2000.

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

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

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is proposing to amend 
its regulations on drug abuse treatment programs (28 CFR 550) 
pertaining to the requirements for the drug abuse education course and 
participation in the institution residential drug abuse treatment 
program.
    Inmates with drug abuse problems who fail to enter drug treatment 
are at significantly higher risk of poor institutional adjustment, 
recidivism, and transition problems once released

[[Page 56841]]

into the community. Though many inmates take advantage of the Bureau's 
drug treatment services each year, some inmates who need drug treatment 
avoid program participation while incarcerated.
    The current regulations for the drug abuse education course are 
contained in Sec. 550.54 and were most recently published in the 
Federal Register on May 25, 1995 (60 FR 27694). These regulations 
distinguish between ``mandatory'' and ``voluntary'' participation in 
the drug abuse education course. Participation is mandatory if there is 
evidence in the inmate's Presentence Investigation that alcohol or 
other drug use contributed to the commission of the instant offense, 
alcohol or other drug use was a reason for violation either of 
supervised release, including parole, or BOP community status (CCC 
placement) for which the inmate is now incarcerated, or the inmate was 
recommended for drug programming during incarceration by the sentencing 
judge. Inmates not qualifying under the mandatory provisions are 
eligible to volunteer for the drug education program with the approval 
of the drug abuse treatment coordinator when participation space is 
available.
    The Bureau is revising the regulation to remove the terms 
``mandatory,'' ``voluntary,'' and ``sanctions''. Participation in the 
drug abuse education program is not intended to be mandatory in the 
sense that a refusal to participate would result in a disciplinary 
action. The intent is that if the inmate chooses to refuse to 
participate, certain consequences may follow which affect the inmate's 
eligibility for other program assignments (for example, work 
performance pay levels or community program eligibility). The Bureau is 
also adding as an additional eligibility criterion evidence of a 
history of alcohol or other drug use. This history of alcohol or other 
drug use need not be limited to circumstances surrounding the instant 
offense.
    The current provisions for the institution residential drug abuse 
treatment program are contained in Sec. 550.56 and were most recently 
published in the Federal Register on May 25, 1995 (60 FR 27694). The 
institution residential drug abuse treatment program allows 
participation by inmates to be voluntary. Currently, inmates may 
receive incentives for their satisfactory involvement in the 
residential program. For example, inmates may be eligible for financial 
achievement awards, recommendation for the maximum 180-day community 
corrections center placement, and early release consideration (provided 
they meet the strict criteria for early release) upon full program 
completion.
    In an effort to encourage more inmates to participate in the 
residential drug abuse treatment program, the Bureau is proposing to 
establish enhanced incentives at selected institutions. The three 
additional incentives being proposed in this document are tangible 
achievement awards as permitted by the Warden and allowed by the 
regulations governing personal property (for example, textbooks, 
journals, drug abuse program t-shirts), pencils, photographs of 
treatment ceremonies, and consideration for a nearer release transfer 
for medium and low security inmates. Nearer release transfers 
ordinarily are made to place the inmate in an institution nearer the 
inmate's release destination or to facilitate the release process. 
While the Bureau attempts to place inmates in institutions which are 
reasonably close to anticipated release destinations, other factors 
pertaining to inmate population management may mean that an inmate is 
not always optimally placed. In those instances where an inmate's 
placement has been affected by other factors, earning consideration for 
a nearer release transfer may be an additional mitigating factor in a 
subsequent decision to transfer the inmate to an institution nearer to 
the inmate's anticipated release destination.
    The Bureau is also proposing to encourage participation by 
reluctant inmates with an identified treatment need through the use of 
specified consequences for non-participants. An inmate who has an 
identified treatment need but who refuses to participate in a 
residential treatment program at an institution which offers enhanced 
incentives will be subject to the following consequences: (1) If the 
inmate is eligible for parole, staff will notify the U.S. Parole 
Commission of the inmate's treatment need and the subsequent failure to 
participate in the residential drug abuse treatment program; (2) the 
inmate is not eligible for furlough (other than possibly an emergency 
furlough); (3) the inmate is not eligible for more than 90 days 
placement in community-based programs (for example, placement in a 
community corrections center); (4) the inmate is not eligible for 
performance pay above maintenance pay level, or for bonus or vacation 
pay; and (5) the inmate is not eligible for a Federal Prison Industries 
work assignment (unless the Warden makes exception on the basis of work 
program labor needs). For the sake of consistency, the consequences 
pertaining to work assignment pay are also being revised in the 
provisions which pertain to the drug abuse education course (new 
Sec. 550.54(e)).
    The use of enhanced incentives at selected institutions together 
with the consequences of non-participation is intended to permit the 
Bureau to evaluate the effectiveness of a more aggressive approach in 
drug abuse treatment program placement. The Bureau assumes that these 
revisions will result in increased participation by inmates, 
particularly with respect to those inmates who do not meet the strict 
criteria for early release consideration but who do qualify for nearer 
release transfer. While the Bureau may further adjust the number of 
selected institutions to be used in this evaluation, any system-wide 
application of the additional incentives/consequences would be 
implemented through a separate rulemaking proceeding.
    The Bureau's regulations for both the drug abuse education course 
and the institution residential treatment program contain provisions 
precluding participation by inmates with learning disabilities or 
mental impairments (Secs. 550.54(c) and 550.56(a)(2)). In actuality, 
the Bureau has been able to make reasonable accommodations to allow 
such inmates to participate in the programs. The Bureau believes that 
these provisions are not necessary and accordingly has removed them in 
this proposed revision.
    The Bureau's regulations on inmate work and performance pay (28 CFR 
545, subpart C) are being amended to conform with these requirements. 
The Bureau's regulations on furloughs (28 CFR 570, subpart C) do not 
need to be amended because the Warden may deem the inmate's refusal to 
participate a failure to demonstrate sufficient responsibility to 
provide reasonable assurance that furlough requirements will be met 
(see Sec. 570.34(d)).

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.

Executive Order 13212

    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

[[Page 56842]]

levels of government. Therefore, in accordance with Executive Order 
12612, it is determined 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, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation 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.

Plain Language Instructions

    We want to make Bureau documents easier to read and understand. If 
you can suggest how to improve the clarity of these regulations, call 
or write Sarah Qureshi at the address listed above.

List of Subjects

28 CFR Part 545

    Prisoners.

28 CFR Part 550

    Prisoners.

Kathleen Hawk Sawyer,
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), we propose to amend parts 545 and 
550 in subchapter C of 28 CFR, chapter V as follows.

Subchapter C--Institutional Management

PART 550--DRUG PROGRAMS

    1. The authority citation for part 550 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 
4001, 4042, 4046, 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; 21 U.S.C. 
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 
U.S.C. Chapter 223); 28 CFR 0.95-0.99.

    2. Section 550.54 is revised to read as follows:


Sec. 550.54  Drug abuse education course.

    (a) Purpose. The drug abuse education course is provided at all 
institutions. The purpose of the drug abuse education course is to 
inform inmates of the consequences of drug/alcohol abuse and addiction 
and to motivate inmates in need of drug abuse treatment to apply for 
further drug abuse treatment while incarcerated and upon release.
    (b) Placement. (1) Staff are to give primary consideration for 
placement to an inmate who has been sentenced or returned to custody as 
a violator after September 30, 1991, when unit and/or drug abuse 
treatment staff determine through a combination of interview and file 
review that:
    (i) There is evidence that alcohol or other drug use contributed to 
the commission of the instant offense;
    (ii) Alcohol or other drug use was a reason for violation either of 
supervised release, including parole, or BOP community status (CCC 
placement) for which the inmate is now incarcerated;
    (iii) The inmate was recommended for drug programming during 
incarceration by the sentencing judge; or,
    (iv) There is evidence of a history of alcohol or other drug use.
    (2) Staff may also consider for placement an inmate who requests to 
participate in the drug abuse education program but who does not meet 
the criteria of paragraph (b)(1) of this section.
    (3) An inmate ordinarily will not be considered for placement in 
the drug abuse education course for the following reasons:
    (i) The inmate does not have enough time remaining to serve to 
complete the drug abuse education course;
    (ii) The inmate volunteers for, enters and completes a residential 
drug abuse treatment program, or
    (iii) The inmate completes a structured drug abuse treatment 
program at one of the Bureau of Prisons' Intensive Confinement Centers 
(ICC).
    (c) Written consent. All inmates who enter the drug abuse education 
course are required to sign an agreement to participate prior to 
admission to the course.
    (d) Completion. Completion of the drug abuse education course 
requires attendance and participation during course sessions and a 
passing grade of at least 70 percent on an examination given at the end 
of the course. Inmates who are placed in the course under paragraph 
(b)(1) of this section ordinarily are provided at least three chances 
to pass the final examination before privileges are lost or effects of 
non-participation (see paragraph (e) of this section) are invoked. A 
certificate of achievement will be awarded to all who successfully 
complete the program. A copy of this certificate will be forwarded to 
the unit team for placement in the inmate's central file.
    (e) Effects of non-participation. (1) An inmate who is considered 
for placement under paragraph (b)(1) of this section and who refuses 
participation or is placed in a treatment program pursuant to paragraph 
(b)(1) and withdraws, is expelled, or otherwise fails to meet 
attendance and examination requirements:
    (i) Is not eligible for performance pay above maintenance pay 
level, or for bonus pay, or vacation pay;
    (ii) Is not eligible for a Federal Prison Industries work program 
assignment (unless the Warden makes exception on the basis of work 
program labor needs);
    (iii) Is not eligible for community programs.
    (2) Inmates may be permitted to receive work promotions during 
their participation or while on a ``waiting list'' for the drug abuse 
education course. The Warden may make exceptions to the provisions of 
this paragraph for good cause with reasons for such exceptions 
documented in writing.
    3. In Sec. 550.56, paragraph (a)(2) is removed, and paragraphs 
(a)(3) through (5) are redesignated as paragraphs (a)(2) through (4), 
paragraphs (b) and (d)(3) are revised, and paragraph (e) is added to 
read as follows:

[[Page 56843]]

Sec. 550.56  Institution residential drug abuse treatment program.

* * * * *
    (b) Application/Referral/Placement. An inmate may be identified for 
referral and evaluation for the residential drug abuse treatment 
program by unit or drug treatment staff or apply for the program by 
submitting a request to a staff member (ordinarily, a member of the 
inmate's unit team or the drug abuse treatment coordinator). The 
decision on placement is made by the drug abuse treatment coordinator. 
While participation in the residential drug abuse treatment program is 
voluntary, an inmate who refuses to participate after the decision on 
placement is made is subject to the provisions of paragraph (e) of this 
section.
* * * * *
    (d) * * *
    (3) An inmate who withdraws or is removed from the residential 
program may be returned to his/her prior institution (when the inmate 
had been specifically transferred for the purpose of program 
participation).
    (e) Effects of non-participation. An inmate who refuses to 
participate after being selected by the drug abuse treatment 
coordinator for treatment at an institution that authorizes enhanced 
incentives (see Sec. 550.57(a)(2)), or who withdraws from or is 
otherwise removed is subject to the following:
    (1) Where applicable, staff are to notify the United States Parole 
Commission of the inmate's need for treatment and the inmate's failure 
to participate in the residential drug abuse treatment program.
    (2) The inmate is not eligible for furlough (other than possibly an 
emergency furlough).
    (3) The inmate is not eligible for more than 90 days community-
based program placement.
    (4) The inmate is not eligible for performance pay above 
maintenance pay level, or for bonus pay, or vacation pay.
    (5) The inmate is not eligible for a Federal Prison Industries work 
program assignment (unless the Warden makes exception on the basis of 
work program labor needs).
    4. In Sec. 550.57, paragraph (a) is revised to read as follows:


Sec. 550.57  Incentives for residential drug abuse treatment program 
participation.

    (a) An inmate may receive incentives for his or her satisfactory 
participation in the residential program. In addition to the basic 
incentives listed in paragraph (a)(1) of this section, an institution 
may offer enhanced incentives as listed in paragraph (a)(2) of this 
section.
    (1) Basic incentives. (i) Limited financial awards, based upon the 
inmate's achievement/completion of program phases.
    (ii) Consideration for the maximum period of time (currently 180 
days) in a Community Corrections Center placement, provided the inmate 
is otherwise eligible for this designation.
    (iii) Local institution incentives such as preferred living 
quarters or special recognition privileges.
    (iv) If eligible under Sec. 550.58, consideration for early 
release.
    (2) Enhanced incentives. (i) Tangible achievement awards as 
permitted by the Warden and allowed by the regulations governing 
personal property (see 28 CFR part 553).
    (ii) Photographs of treatment ceremonies may be sent to the 
inmate's family.
    (iii) Formal consideration for a nearer release transfer for medium 
and low security inmates.
* * * * *

PART 545--WORK AND COMPENSATION

    5. 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; 28 CFR 0.95-0.99.

    6. In Sec. 545.25, paragraph (d) is revised to read as follows:


Sec. 545.25  Eligibility for performance pay.

* * * * *
    (d) An inmate who refuses participation, withdraws, is expelled, or 
otherwise fails attendance requirements of the drug abuse education 
course or the residential drug abuse treatment program is subject to 
the limitations specified in Sec. 550.54(e) or Sec. 550.56(e) of this 
chapter.

[FR Doc. 00-24052 Filed 9-19-00; 8:45 am]
BILLING CODE 4410-05-P