[Federal Register Volume 73, Number 134 (Friday, July 11, 2008)]
[Rules and Regulations]
[Pages 39864-39866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15855]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 545

[BOP Docket No. BOP 1132-F]
RIN 1120-AB33


Inmate Work and Performance Pay Program: Reduction in Pay for 
Drug- and Alcohol-Related Disciplinary Offenses

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) amends 
regulations on inmate work and performance pay to require that inmates 
receiving performance pay who are found through the disciplinary 
process (found in 28 CFR part 541) 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.

DATES: This rule is effective August 11, 2008.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: In this document, the Bureau amends 
regulations on inmate work and performance pay to require that inmates 
receiving performance pay who are found through the disciplinary 
process (found in 28 CFR part 541) 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.
    We published this as a proposed rule on November 2, 2006 (71 FR 
64505). We received three comments, which we address below.
    The first commenter questioned whether ``imposing a financial 
penalty on the prisoner saddled with recognized disabilities like drug 
addiction and alcoholism * * * will have the benefit of strengthening 
ongoing efforts to target

[[Page 39865]]

an [sic] eliminate the introduction of drugs or alcohol into Bureau 
institutions.''
    This commenter is suggesting that the Bureau ease repercussions of 
committing a prohibited act related to drugs or alcohol. As the Bureau 
stated in its preamble to the proposed regulation, the additional 
financial penalty will serve to deter recurrence of drug- and alcohol-
related prohibited acts. Increasing the potential repercussions of 
committing new prohibited acts will discourage inmates from committing 
them.
    The first commenter also stated that ``prisoners suffering from 
drug addiction and/or alcoholism, absent effective and continuing 
treatment availability, will find themselves forced into unauthorized 
and criminal behaviors in order to feed their untreated disabilities.'' 
One of the Bureau's many goals is to encourage a sense of 
accountability among inmates. This regulation will help to encourage 
inmate responsibility by actively deterring the commission of drug- and 
alcohol-related prohibited acts. Further, the Bureau offers several 
drug/alcohol treatment programs for qualifying inmates, which should 
also help to relieve ``untreated disabilities'' of such inmates.
    The first commenter also suggested that, instead of the proposed 
rule, a ``better course appears to be requiring prisoners found to have 
committed a 100 or 200 series drug or alcohol related prohibited act to 
attend and successfully complete a drug abuse education course provided 
by 28 CFR 550.54.'' However, under current Sec.  550.54(b), inmates 
enrolled in a drug abuse education course who fail to meet the 
requirements of the course may be held at the lowest pay grade. 
Further, inmates in a residential drug abuse treatment program may be 
expelled, immediately and without warning, if found by a DHO to have 
used or possessed alcohol or drugs, or committed a 100 level prohibited 
act, under current 28 CFR 550.56(d).
    The second commenter asked whether the rule would apply 
retroactively. The answer to this question is that it will not apply 
retroactively to affect inmates who committed drug- and alcohol-related 
prohibited acts prior to the effective date of the regulation. After 
the effective date of the regulation, any inmate who commits a 
qualifying offense will have their pay reduced according to the 
regulation.
    The second commenter also asked whether the reduction in pay 
consequence would be indefinite. Under the Bureau's policy guidance to 
staff, which will be issued simultaneously with this final rule, 
sanctions for performance pay recipients will remain in effect for one 
year from the date the inmate was found to have committed the 
prohibited act. We have altered the regulation to add this time limit.
    The third commenter suggested that the rule apply not only to 
performance pay inmates but also to those inmates receiving UNICOR pay. 
Although the Bureau agrees with the commenter, this regulation relates 
only to inmates receiving performance pay, and as such, will continue 
to read as proposed. However, the Bureau is currently revising its 
policy guidance on UNICOR pay to clarify that UNICOR inmates found 
through the disciplinary process to have committed a level 100 or 200 
series drug-or alcohol-related prohibited act will automatically have 
their pay reduced to a level 4 pay-grade, which is the equivalent of 
maintenance pay for performance pay inmates.
    Further, the third commenter was concerned that the proposed rule 
did not ``place a timetable on the reduction in the inmate's pay grade 
* * * [the reduction in pay] could be indefinite.'' We agree and have 
added the following language: ``This reduction to maintenance pay level 
will ordinarily remain in effect for one year, unless otherwise 
authorized by the Warden.''
    For the foregoing reasons, we now finalize, with minor changes, the 
proposed rule published on November 2, 2006 (71 FR 64505).

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined to constitute ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866 and, 
accordingly, it was 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. This rule will have the benefit of strengthening ongoing efforts 
to target and eliminate the use and/or introduction of drugs or alcohol 
into Bureau institutions. 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.

Harley G. Lappin,
Director, Bureau of Prisons.

0
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 amend 28 CFR part 545 as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 545--WORK AND COMPENSATION

0
1. Amend the authority citation for 28 CFR part 545 continues to read 
as follows:


[[Page 39866]]


    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.


0
2. In Sec.  545.25, add paragraph (e) to read as follows:


Sec.  545.25  Eligibility for performance pay.

* * * * *
    (e) 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, and removal from assigned work detail outside the secure 
perimeter of the institution, will ordinarily remain in effect for one 
year, unless otherwise authorized by the Warden.

 [FR Doc. E8-15855 Filed 7-10-08; 8:45 am]
BILLING CODE 4410-05-P