[Federal Register Volume 88, Number 6 (Tuesday, January 10, 2023)]
[Proposed Rules]
[Pages 1331-1336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00244]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88 , No. 6 / Tuesday, January 10, 2023 / 
Proposed Rules  

[[Page 1331]]



DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 545

[BOP-1178]
RIN 1120-AB78


Inmate Financial Responsibility Program: Procedures

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would update and streamline regulations 
regarding the Inmate Financial Responsibility Program (IFRP).

DATES: Electronic comments must be submitted, and written comments must 
be postmarked, no later than 11:59 p.m. on March 13, 2023.

ADDRESSES: Please submit electronic comments through the 
regulations.gov website, or mail written comments to the Legislative & 
Correctional Issues Branch, Office of General Counsel, Bureau of 
Prisons, 320 First Street NW, Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant 
General Counsel, Federal Bureau of Prisons, at the address above or at 
(202) 353-4885.

SUPPLEMENTARY INFORMATION: Regulations for the Inmate Financial 
Responsibility Program (IFRP) are located in 28 CFR part 545. This 
proposed rule amends paragraphs (b), (c), and (d) in 28 CFR 545.11.
    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. 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 
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 FURTHER INFORMATION CONTACT paragraph.

I. Background

    The purpose of the Inmate Financial Responsibility Program (Program 
or IFRP), operated by the Bureau of Prisons (Bureau) since 1987, is 
twofold: to encourage federal inmates in Bureau facilities to pay 
financial obligations; and to support federal inmates in developing 
financial planning skills.
    Inmate participation in the IFRP is voluntary. Subject to certain 
exemptions listed in 28 CFR 545.10, all sentenced federal inmates are 
eligible to participate. During an inmate's initial classification, 
current Bureau policy requires staff to review the inmate's financial 
obligations--by consulting the inmate's presentence investigation 
report, judgment and commitment order(s) and other court documents, and 
any other available information--and encourage inmates to satisfy any 
court-ordered obligations either at the time of this initial review or 
throughout the inmate's term of imprisonment. The Bureau strongly 
recommends that all inmates with financial obligations participate in 
the IFRP, along with other programs and activities designed to reduce 
recidivism, such as work, education, and drug rehabilitation programs. 
Additionally, in recognition of the importance of planning for re-
entry, including the availability of financial resources, the Bureau is 
separately exploring methods to encourage inmates to set aside and/or 
maintain a limited amount of funds specifically for re-entry 
assistance, which would be encumbered until re-entry and treated 
differently for purposes of the IFRP. These efforts include 
implementing section 605(c) of the First Step Act of 2018 (Pub. L. 115-
391), which amended 18 U.S.C. 4126(c)(4) to indicate that inmates who 
work for Federal Prison Industries (FPI, operating under the trade name 
UNICOR) \1\ will have 15 percent of their compensation reserved and 
made available to assist them with costs associated with release from 
prison.
---------------------------------------------------------------------------

    \1\ ``UNICOR'' is the trade name for Federal Prison Industries 
(FPI), which ``sells market-priced services and quality goods made 
by inmates.'' See https://www.bop.gov/inmates/custody_and_care/unicor.jsp.
---------------------------------------------------------------------------

    If an inmate chooses to participate in the IFRP, Bureau staff will 
work with the inmate to develop a financial plan, which is documented 
and signed by the inmate and includes financial obligations paid in the 
following order of priority:
    1. Special assessments imposed by the court under 18 U.S.C. 3013;
    2. Court-ordered restitution, including assessments related to 
bodily injury to victims occurring as a result of the offense, loss or 
destruction of victim property, or other assessments as indicated by 
the court;
    3. Fines and court costs;
    4. State or local court obligations (such as child support or 
alimony, as documented by a court order or letter from the relevant 
state authority);
    5. Other federal government obligations (including fees imposed 
under 18 U.S.C. 4001 for Cost of Incarceration, other judgments in 
favor of the United States, student loans, Veterans Administration 
claims, tax liabilities, and Freedom of Information or Privacy Act 
fees).
    Given the importance of satisfying outstanding financial 
obligations and reducing the amount of debt upon release, there are 
consequences to choosing not to participate. Documented refusal by 
inmates to participate in the IFRP, or to comply with the provisions of 
their agreed-upon financial plan, results in the specific consequences 
currently listed in 28 CFR 545.11(d),

[[Page 1332]]

including notification to the Parole Commission, preclusion of furlough 
eligibility (other than emergency or medical furlough), preclusion of 
certain pay benefits or increases, preclusion of eligibility for 
premium work opportunities and/or removal from a UNICOR work 
assignment, commissary spending restrictions, loss of release gratuity 
(unless approved by the warden), and loss of incentives (such as early 
release and financial awards) otherwise available to an inmate who 
participates in residential drug treatment programs.
    As the IFRP is currently operated, Bureau staff review and reassess 
each inmate's financial plan and IFRP payments every 180 days; this 
interval becomes 90 days when the inmate is within 12 months of 
release. As part of that review, Bureau staff first review the total 
funds deposited into the inmate's commissary account over the previous 
six-month period from any source. As stated in 28 CFR 506.1, individual 
inmate commissary accounts allow the Bureau to maintain inmate monies 
while the inmate is incarcerated. Funds in inmate accounts can come 
from a number of sources: the inmate may earn pay from work assignments 
(including compensation earned through UNICOR); family members or 
friends may send funds to the inmate; the inmate may receive tax 
refunds or other government-related issuances; or the inmate may 
receive other types of income (such as stock dividends, state benefits, 
litigation settlements, and inheritance). All money earned by the 
inmate from the Bureau is automatically deposited into the inmate's 
commissary account.
    Next, to determine whether future payments under the IFRP plan 
should be adjusted based on the inmate's financial activity over the 
previous six-month period under review, staff subtract the total amount 
of any payments an inmate has made during the previous six-month period 
under the IFRP plan (payments made toward the inmate's financial 
obligations) from the amount deposited into the account over that same 
time period. Under current regulations in section 545.11(b), when 
performing this calculation to determine the amount an inmate has 
available for payment of financial obligations, staff must also 
subtract a $75 per month allowance for telephone communication (a total 
of $450 for each six-month period). That amount is not included in the 
calculation of the total amount an inmate has available for payments 
under the IFRP.
    Then, based on the foregoing information, staff estimate the amount 
the inmate is likely to have remaining at the end of that six-month 
period. Based on that amount, staff determine whether to adjust the 
inmate's financial plan and IFRP payments. Under the current 
regulation, the minimum payment for inmates who do not have a UNICOR 
work assignment, or who have a UNICOR grade 5 work assignment, is 
ordinarily $25 per quarter. For inmates assigned a UNICOR work 
assignment with a grade between 1 and 4, the minimum payment is 
ordinarily expected to be 50 percent of the inmate's pay.

Proposed Rule

    The Bureau last engaged in rulemaking relating to the IFRP in 1994. 
This proposed rule makes changes to update, streamline, and clarify 
IFRP regulations in paragraphs (b), (c), and (d) in section 545.11, as 
follows:
    Proposed changes to paragraph (b):
    1. Introductory paragraph. The Bureau first proposes to delete and 
streamline language in the introductory paragraph of 545.11(b) that was 
intended as guidance for Bureau staff. Currently, paragraph (b) states 
that, as described above, when computing the amount of funds an inmate 
has available to pay financial obligations, Bureau staff must: (1) 
subtract the inmate's minimum payment schedule as determined by the 
financial plan made during initial classification; and (2) subtract $75 
per month to allow the inmate to retain funds for telephonic 
communication. The amount left after these subtractions, and a review 
of any deposits that have occurred in the interim between reviews, is 
considered when determining whether the inmate's IFRP payments should 
be adjusted.
    The purpose of the provision requiring $75 to be subtracted from 
the amount considered potentially available to pay an inmate's 
financial obligations was to ensure that inmates could maintain 
telephonic communication with their families. When that provision was 
first put in place, there were no other safeguards designed to ensure 
that inmates had sufficient access to telephone calls to maintain 
contact with family members. There was, therefore, a concern that all 
funds deposited into inmate accounts would be used to pay financial 
obligations, leaving inmates with no funds to pay for telephone calls. 
However, there have been several developments since the initial 
creation of this provision that have rendered it unnecessary and 
obsolete.
    The provision originates from a 1993 proposed rule limiting 
telephone calls for inmates who refuse to participate in the IFRP. (See 
58 FR 39096, July 21, 1993). When the rule was finalized on April 4, 
1994 (59 FR 15812), amended language directed that $50 be set aside 
monthly for each IFRP inmate-participant's use for telephone calls to 
family, to address commenters' concerns that inmates lacked control 
over funds sent to them from outside sources (specifically, funds sent 
from family for the particular purpose of maintaining telephonic 
contact). See 59 FR 15812 at *15818-9. A commenter was concerned that 
all funds sent in would be automatically applied toward an inmate's 
financial obligations, thereby leaving nothing in the inmate's account 
for the inmate to use for telephone calls to family. The amended 
language directing that $50 be ``held back'' from the amount to be used 
to satisfy financial obligations, so that it would be ``saved'' in an 
inmate's account for telephone calls, resolved this issue.
    However, as became apparent, reserving an amount in inmate accounts 
for telephone calls would only become necessary for inmates who had 
limited funds available. Inmates with adequate funds were able to pay 
their financial obligations and still have funds available in their 
accounts for telephone calls without intervention. Therefore, only 
indigent inmates needed a ``reservation'' provision.
    In the 1994 final rule, the Bureau also assured commenters that 
inmates without funds would have access to the telephone system, 
referring to amendments to 28 CFR 540.105, Expenses of inmate telephone 
use. Paragraph (b) of that regulation currently provides that the 
warden must permit one collect call per month for inmates without funds 
and has the discretion to increase that number. Paragraph (d) indicates 
that the government may bear the expense of inmate telephone use under 
compelling circumstances. The concern that inmates without funds will 
be blocked from telephone use is remedied by these amendments.
    On January 2, 1996, the Bureau increased the reserved amount from 
$50 to $75 in an interim rule with a request for comments. (See 61 FR 
90). This amendment was the direct result of the terms of a settlement 
approved by the district court in a nationwide federal prisoner class 
action, Washington v. Reno, Nos. 93-217, 93-290 (E.D. Ky. Nov. 3, 
1995). The 1996 interim rule was finalized on December 28, 1999 (64 FR 
72798). However, the settlement agreement, according to its terms, 
expired in 2002, four years after the installation of the Bureau's 
second nationwide inmate telephone system. Within the first few years 
of the

[[Page 1333]]

implementation of the Bureau's telephone system, inmates were able to 
acclimate to the need to adjust IFRP payments and funds in their 
account in a way that allowed them to retain sufficient funds to use 
for telephone calls and other needs while incarcerated. Retaining 
sufficient funds to cover basic inmate needs during incarceration 
remains a priority when developing and updating an inmate's IFRP 
payment plan.
    One purpose of the IFRP is to promote inmate financial 
understanding and self-regulation. To meet that goal, staff work with 
inmates to structure a reasonable payment plan that is attainable for 
the inmate, in light of any funds coming into the account (whether from 
inmate work assignment pay or through outside sources) and any 
reasonable expenditures required by the inmate. Therefore, because of 
the safeguards that currently exist in 28 CFR part 540 to allow inmates 
without funds access to telephone calls to maintain family contact, the 
proposed amendments would delete provisions in 28 CFR part 545 
requiring that inmate funds be specifically reserved for this purpose.
    2. Addition of language regarding implementation of payment plans 
contained in court orders.
    The Bureau proposes to include language in the regulation that 
clarifies how the Bureau will treat payment plans for financial 
obligations that are set out in an inmate's Judgment & Commitment order 
(J&C) or other court order. Current guidance for Bureau staff provides 
that if the inmate's J&C has a specific payment plan outlined, payments 
are to be collected according to the direction provided in the J&C. The 
Bureau proposes to make this provision part of the rule itself, in 
order to minimize confusion for inmates and staff and make clear that 
such court-ordered payment plans, rather than plans developed under the 
IFRP rule, will be implemented as the inmate's financial pan.
    Since the Bureau last engaged in rulemaking on this topic, a 
significant body of case law has developed around restitution imposed 
under the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. 3663A and 
3664. The MVRA directs that a sentencing court ``shall . . . specify in 
the restitution order the manner in which, and the schedule according 
to which, the restitution is to be paid.'' 18 U.S.C. 3664(f)(2). The 
federal courts of appeals have uniformly held that payment plans for 
MVRA obligations are the province of the district courts, and expressly 
prohibit delegation of that authority to another entity. See, e.g., 
United States v. Gunning, 339 F.3d 948 (9th Cir. 2003); United States 
v. Prouty, 303 F.3d 1249, 1254-1255 (11th Cir. 2002). In accordance 
with this case law, and in the interest of establishing a uniform 
standard for all financial obligations across all Bureau facilities and 
respecting the orders of federal courts, the Bureau proposes to make 
explicit in the IFRP rule that a court-ordered payment plan should be 
implemented as an inmate's financial plan.
    3. Addition of language regarding one-time payment. The Bureau 
proposes to add language to the rule that clarifies that, following the 
initial classification and review of the inmate's financial 
obligations, the inmate should be encouraged to make a one-time payment 
from available funds in the inmate's commissary account to satisfy any 
identified financial obligations. Currently, guidance to Bureau staff 
notes that in certain circumstances, including when an inmate's total 
financial obligation is $100 or less, the inmate should be encouraged 
to make a one-time payment to satisfy that obligation. The purpose of 
this revision is to make clear that all inmates, regardless of the size 
of the financial obligation, should be encouraged to make this one-time 
payment. In addition, the Bureau proposes to include language noting 
that if the inmate has funds in the inmate's commissary account 
sufficient to satisfy a fine or restitution, but refuses to make a 
single payment to do so during this initial review, the United States 
Attorney's Office in the inmate's district of prosecution should be 
notified. The intent of this provision is to allow the United States 
Attorney's Office to proceed with any judicial process necessary to 
have those funds turned over in satisfaction of the inmate's fine or 
restitution obligation.
    4. Revision of language regarding development of payment plans. The 
Bureau also proposes to modify language indicating that the minimum 
payment for inmates who do not work in UNICOR positions and those who 
work in UNICOR positions at the grade 5 level will be $25 per quarter, 
and that inmates assigned to UNICOR grades 1 through 4 work assignments 
will be expected to allot 50% of their monthly pay to IFRP payments. 
The regulation categorizes inmates as such because, as described in 28 
CFR 345.51, inmate workers in UNICOR receive pay at five levels, 
ranging from grade 5 pay (lowest currently $.23/hour) to grade 1 pay 
(highest currently $1.15/hour). Generally, non-UNICOR assignments are 
less desirable to inmates because the pay is lower, ranging from $.12/
hour to $.40/hour depending on grade.
    In recognition of the differences in pay, the IFRP regulations have 
traditionally allowed for a lower overall minimum payment for inmates 
in non-UNICOR assignments and those at the lowest UNICOR pay level 
(grade 5). UNICOR pay rates have consistently been three to four times 
that of non-UNICOR pay rates. However, instead of a percentage 
requirement, as exists for inmates who have UNICOR work assignments and 
are paid at the higher UNICOR pay levels, the current regulation 
indicates that the minimum payment of financial obligations for these 
non-UNICOR and UNICOR grade 5 inmates will ordinarily be $25 per 
quarter, but may exceed $25 when factors such as the inmate's specific 
obligations, institution resources, and community resources are taken 
into consideration.
    Because of the use of the word ``may,'' the current regulation 
proved to be unclear regarding whether and how community resources 
(such as funds from friends and family) should be taken into 
consideration. The language described above was meant not to be 
permissive but instead to indicate that community resources must be 
taken into account when calculating IFRP payments for these inmates. In 
practice, inmates and staff read the regulation as indicating that the 
default position was that these inmates could maintain minimum payments 
of $25 per quarter. Therefore, many inmates employed in non-UNICOR 
assignments or a UNICOR grade 5 assignment maintained a minimum payment 
of $25 per quarter of their obligations, and community resources were 
not taken into account. As a result, many inmates currently pay only 
$25 per quarter toward their financial obligations, despite having the 
financial means to increase those payments.
    The Bureau therefore proposes to change the regulation as follows:
     The regulation would indicate that, in the absence of some 
other court-ordered payment plan, inmates assigned to UNICOR work 
assignments in grades 1 through 4 will be expected to allot not less 
than 50% of their pay to IFRP payments, and that those assigned to 
UNICOR grade 5 or non-UNICOR work assignments will be expected to allot 
not less than 25% of their pay to IFRP payments.
     The regulation would also clarify that all inmates, in the 
absence of some other court-ordered payment plan, whether assigned to 
UNICOR or non-UNICOR work assignments, will be expected to allot not 
less than 75% of

[[Page 1334]]

funds from non-institution (community) resources to the IFRP payment 
process.
     Further, the regulation would explain that exceptions to 
the stated allotments must be approved by the inmate's unit manager in 
consultation with the associate warden of the inmate's institution, and 
documented in writing.
    This change is consistent with the intent of the Bureau when the 
regulations were first published as a proposed rule on November 21, 
1986 (51 FR 42167) and finalized on April 1, 1987 (52 FR 10528). The 
1987 version of current 28 CFR 545.11(b) indicated that payments 
required by an inmate's financial responsibility plan were to be made 
from both the ``earnings of the inmate within the institution and/or 
from outside resources.''
    When the regulations were amended in 1989, language was added to 
the regulation specifying that the minimum payment for non-UNICOR and 
UNICOR grade 5 inmates would be $25 per quarter. (See proposed rule 
published on March 17, 1989, at 54 FR 11332; and final rule published 
on December 1, 1989, at 54 FR 49944.) The regulations were again 
amended on May 21, 1991 (56 FR 23476), and were clarified to explain 
that the minimum payment may exceed $25, taking into consideration the 
inmate's specific obligations, institution resources, and community 
resources.
    However, since 1991, it has proved impractical to have a specified 
dollar amount ($25) required in the regulation for the purpose of 
fulfilling inmate financial obligations. As stated, the initial 1989 
regulations attempted to specify a $25 minimum payment but, when it 
proved untenable, the regulations were amended in 1989 to allow for a 
``minimum payment'' exceeding the specified amount, indicating that the 
individual circumstances of each inmate--namely, ``factors such as the 
inmate's specific obligations, institution resources, and community 
resources''--must be taken into consideration.
    Therefore, the Bureau now proposes to clarify this provision by 
removing the specified dollar amount altogether, and replacing it with 
a percentage system, which will more equitably account for each 
inmate's specific obligations and resources while leaving the inmate 
with some funds to spend within the institution and/or save for re-
entry purposes. As indicated above, pay rates for UNICOR work 
assignments are between three and four times higher than pay rates for 
non-UNICOR work assignments. To adjust for this disparity in pay rates, 
the Bureau proposes to require inmates with UNICOR work assignments to 
allot 50% of pay to IFRP payments, and those with non-UNICOR work 
assignments to allot 25% of pay to IFRP payments. In addition, in 
recognition of the importance of satisfying financial obligations, 
including restitution owed to victims of criminal conduct, inmates will 
also be expected to allot 75% of the deposits received into their 
commissary accounts from sources outside the institution to the IFRP 
payment process. As indicated, however, these percentage allotments may 
be altered on a case-by-case basis, as approved by the unit manager in 
consultation with the associate warden of the inmate's institution.
    In developing this proposed rule, the Bureau explored the 
possibility of creating a system wherein the percentage of institution 
(community) deposits an inmate would pay toward IFRP increased as the 
inmate's commissary account balance or total amount of deposits 
increased. The Bureau also considered a system similar to progressive 
taxation, which would apply a lower marginal rate to amounts below a 
certain threshold, and higher marginal rate to amounts above that 
threshold. These proposals offer several benefits. It would allow the 
Bureau to target large account balances while still preserving a 
minimum amount of funds for an inmate's daily and future use. It is 
also more equitable, recognizing that an inmate with an account balance 
of $100 and minimal incoming deposits is differently situated than one 
with an account balance of $10,000 or one with numerous deposits.
    However, the Bureau also determined that there were significant 
technological, administrative, and other disadvantages associated with 
these alternative approaches when compared to applying a single, flat 
percentage to all deposits. First, there is the risk that inmates might 
maintain deliberately small account balances through unlawful or 
illegitimate means (including having money held by other inmates), or 
otherwise engage in ``structuring'' of deposits and other transactions, 
to avoid paying a higher percentage toward IFRP. In addition, a system 
that set cut points based on the balance in an inmate's account 
presented the risk of unfairness by treating inmates with similar 
balances differently. For example, an inmate whose account balances 
totaled $499 might be expected to pay 25 percent of future deposits 
towards IFRP, while an inmate whose account balances totaled $500.01 
might be expected to pay 50 percent of community deposits towards IFRP.
    A ``progressive'' system tied to deposit amounts could mitigate 
this latter concern. For instance, such a system might set a marginal 
rate of 25% for the first $500 in community deposits during a time 
period, with a rate of 75% for any deposits over $500 during the same 
span. In that scenario, an inmate who deposited $500 in a 365-day 
period would pay $125 (25% of the $500). An inmate who deposited $501 
in a 365-day period would pay $125.50 (25% of the first $500, and 75% 
of the amount--$1--over $500).
    This solution, however, brings technological and administrative 
challenges for the Bureau. The Bureau lacks a fully automated process 
to ``freeze'' funds or make IFRP withdrawals from an inmate's account, 
which prevents the Bureau from automatically adjusting IFRP payments as 
the amount in the account increases or decreases, or an individual 
deposit is above or below a certain point. An individual inmate's IFRP 
financial plan is first manually entered by unit team staff and 
payments are manually withdrawn and paid to the correct payee by a 
Trust Fund staff member pursuant to the terms of the financial plan the 
inmate has agreed to. In developing the financial plan, unit team staff 
look at the prior 180 days of financial activity in the inmate's 
account to determine how much the inmate will be expected to pay; the 
inmate then signs the financial plan and agrees to abide by that plan 
until the next review. Because deposits can fluctuate significantly 
from one six-month period to the next (for example, if an inmate 
receives a tax refund or other one-time payment), basing an inmate's 
future payment obligations on past deposits is administratively 
difficult.
    As a result of the concerns addressed above, the Bureau ultimately 
concluded in this proposed rule that it would treat all community 
deposits equally for IFRP purposes. Under this proposed rule, inmates 
will know with certainty what they will be expected to pay. Staff will 
be able to develop intelligible financial plans that are easily 
understood by inmates and appropriately implemented by BOP staff 
members. At the same time, the Bureau understands the concerns with 
this system and will consider input in finalizing the rule as to this 
proposed structure, as well as suggestions for how to make a 
``progressive'' system more practicable notwithstanding the challenges 
described above.
    Proposed changes to paragraph (c):
    Paragraph (c) of 28 CFR 545.11 explains that an inmate's 
participation and progress in meeting the inmate's

[[Page 1335]]

IFRP obligations will be assessed each time staff assess the inmate's 
demonstrated level of responsible behavior. What this has meant in 
practice is that an inmate's IFRP participation and financial plan are 
reviewed during the inmate's program review meeting with unit team 
staff, which ordinarily occurs every 180 days. See 28 CFR 524.11(a)(2).
    The Bureau intends to revise this rule to explain that the inmate's 
financial plan will be reviewed at a minimum during the inmate's 
program review meeting. This revision would make explicit what has been 
Bureau practice and would align this regulatory text with the 
terminology used in 28 CFR 524.11. Furthermore, by specifying that this 
review would take place ``at a minimum'' during program review, the 
Bureau intends to provide staff with flexibility to adjust an inmate's 
financial plan during the interim period between program review 
meetings in the event the inmate's circumstances change (for example, a 
change in institution work assignment).
    Proposed changes to paragraph (d):
    Paragraph (d) of 28 CFR 545.11 lists the effects of non-
participation in the IFRP. The Bureau is proposing to revise paragraph 
(d) to remove some listed consequences, as they are no longer in use, 
and to add one new consequence. The Bureau proposes to make three 
substantive changes.
    1. Deletion of language requiring quartering in lowest housing 
status as an effect of non-participation in IFRP. First, the Bureau 
proposes to delete current paragraph (d)(7), which requires that if an 
inmate refuses to participate in or comply with the provisions of the 
IFRP, the inmate be quartered in the lowest housing status available 
(dormitory or double-bunking, for example). Based on the physical 
layout of many institutions, as well as the mission of each facility, 
implementing this ``effect of non-participation'' is not always 
feasible. Assignments to housing are based on a variety of factors, 
including administrative, staffing, population, building layout, 
environmental, and other factors; therefore, implementing this 
provision has proved impractical at various facilities, over time, and 
even within the same facility among different units.
    2. Deletion of language prohibiting placement in community-based 
programs as an effect of non-participation in IFRP. Second, the Bureau 
proposes to delete current paragraph (d)(8), which states that if an 
inmate refuses to participate in or comply with the provisions of the 
IFRP, the inmate will not be placed in a community-based program. An 
inmate's refusal to participate in the IFRP should not be the sole 
determining factor in an inmate's eligibility for placement in a 
community-based program, though it will continue to be a factor when 
considering an inmate's level of responsibility. In fact, the Bureau 
reviews all inmates for placement in community-based programs in 
accordance with the Second Chance Act of 2007, Public Law 110-199, 122 
Stat. 657, April 9, 2008 (see also the Second Chance Reauthorization 
Act of 2018, Pub. L. 115-391, 132 Stat. 5194, December 21, 2018).
    3. Addition of language regarding inmate ineligibility to earn or 
apply First Step Act Time Credits as an effect of non-participation in 
IFRP. Pursuant to the First Step Act (FSA) of 2018 (Pub. L. 115-391, 
codified in pertinent part at 18 U.S.C. 3632), the Bureau is required 
to assess the recidivism risk and criminogenic needs of all federal 
inmates, and to place inmates in recidivism reducing programs and 
productive activities to address their needs and reduce this risk. The 
FSA and its implementing regulations (28 CFR 523.40 through 523.44) 
provide that eligible inmates can earn FSA Time Credits, which shall be 
applied toward prerelease custody or early transfer to supervised 
release, for successfully participating in approved Evidence-Based 
Recidivism Reduction (EBRR) Programs or Productive Activities (PAs). 
EBRRs and PAs are assigned to each inmate based on the inmate's risk 
and needs assessment. 18 U.S.C. 3632(d)(4) and 3624(g); 28 CFR 523.40-
44.
    Productive Activities are ``group or individual activit[ies] that 
allow[ ] an inmate to remain productive and thereby maintain or work 
toward achieving a minimum or low risk of recidivating.'' 28 CFR 
523.41(b). PAs include a variety of groups, programs, classes, and 
individual activities which can be either structured (i.e., a 
curriculum-based program led by staff, contractors, or volunteers) or 
unstructured (e.g., maintaining family connections, fitness, and clear 
institutional conduct; obtaining identification). Inmates who ``opt 
out'' of recommended EBRR Programs or PAs are ineligible to earn or 
apply FSA Time Credits. 28 CFR 523.41(c)(4)(v)(iii) and (d); 523.44(a) 
(inmate must be eligible to earn FSA Time Credits in order to apply FSA 
Time Credits).
    The Bureau considers the IFRP to be an unstructured Productive 
Activity, and it therefore proposes to add a paragraph, (d)(9), to this 
rule, to clarify that inmates who refuse to participate in (opt out of) 
the IFRP will not be eligible to earn or apply FSA Time Credits. During 
an inmate's initial classification, Bureau policy requires staff to 
review the inmate's financial obligations. The Bureau recommends that 
all inmates with financial obligations participate in the IFRP as a 
means of addressing this need, as an inmate's efforts to fulfill their 
financial obligations through IFRP demonstrate acceptance of 
responsibility and a good faith effort to lower their recidivism risk. 
Because an inmate with financial obligations who ``opts out'' of IFRP 
participation will fail to successfully participate in a recommended 
Productive Activity, such an inmate will remain ineligible to earn or 
apply FSA Time Credits until such time as the inmate chooses to 
participate in the IFRP. See 28 CFR 523.41(c)(4)(v)(iii) and 523.44.
    4. Conforming amendments. Finally, the Bureau proposes to delete 
current paragraph (d)(10), which is currently listed as ``reserved,'' 
and to make amendments to redesignate the numbered list in this 
regulation to conform to the changes described in this proposed rule.

Regulatory Analyses

    Executive Orders 12866 and 13563. This proposed rule does not fall 
within a category of actions that the Office of Management and Budget 
(OMB) has determined constitutes a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866 and, accordingly, it was 
not reviewed by OMB. The economic impact of this proposed rule is 
limited to an existing BOP program that applies to sentenced inmates in 
the custody of the Federal Bureau of Prisons, and does not apply to 
inmates in study/observation; pretrial detainees; or inmates in 
holdover status pending designation.
    Executive Order 13132. This proposed rule will not have substantial 
direct effect 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, the Bureau determines 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 
proposed rule 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 proposed rule pertains to the 
correctional management of offenders

[[Page 1336]]

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 and funds held in individual inmate accounts.
    Unfunded Mandates Reform Act of 1995. This proposed 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 (adjusted for inflation), 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.
    Congressional Review Act. This proposed rule is a not major rule as 
defined by the Congressional Review Act, 5 U.S.C. 804.

List of Subjects in 28 CFR Part 545

    Prisoners.

Colette S. Peters,
Director, Federal 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, the Bureau proposes to amend 28 CFR part 545 as 
follows:

Subchapter C--Institutional Management

PART 545--WORK AND COMPENSATION

0
1. The authority citation for part 545 is amended to read as follows:

    Authority:  5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3572, 3621, 
3622, 3624, 3632, 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.  545.11, revise paragraphs (b), (c), (d) introductory text, 
and (d)(7) through (9) to read as follows:


Sec.  545.11  Procedures.

* * * * *
    (b) Payment of financial obligations. The inmate is responsible for 
making satisfactory progress in meeting the inmate's financial 
responsibility plan and for providing documentation of these payments 
to unit team staff. A plan for payment of financial obligations set out 
in the inmate's Judgment & Commitment order (J&C) or other court order 
should be implemented as the inmate's financial plan. In the event the 
J&C or other court order does not prescribe a payment plan or schedule, 
the following will apply.
    (1) Initial classification. During the initial classification and 
review of the inmate's financial obligations, unit team staff will 
review the inmate's individual commissary account balance and encourage 
the inmate to make a one-time single payment to satisfy any financial 
obligations. If the inmate has funds sufficient to satisfy a fine or 
restitution, but refuses to make a single payment to do so, the United 
States Attorney's Office in the inmate's district of prosecution should 
be notified.
    (2) Financial plans. For an inmate who is unwilling or unable to 
make a single payment to satisfy the inmate's financial obligation(s) 
at the time of the initial classification and review, Bureau staff will 
establish a financial plan for the inmate. These financial plans shall 
be structured as follows:
    (i) Allotment of institution resources. (A) An inmate with a UNICOR 
work assignment in grades 1 through 4 will be expected to allot not 
less than 50% of the inmate's monthly pay to the IFRP payment process.
    (B) An inmate with a non-UNICOR work assignment or UNICOR grade 5 
work assignment will be expected to allot not less than 25% of the 
inmate's monthly pay to the IFRP payment process.
    (ii) Allotment of non-institution (community) resources. An inmate 
will be expected to allot 75% of deposits placed in the inmate's 
commissary account by non-institution (community) sources to the IFRP 
payment process.
    (3) Exceptions to allotment amounts. Any allotment which differs 
from those described in paragraph (b)(2) of this section must be 
approved by the unit manager, after consultation with the associate 
warden, and documented in writing.
    (c) Monitoring. Participation and/or progress in the IFRP will be 
reviewed, at a minimum, during an inmate's program review meeting.
    (d) Effects of non-participation. Refusal by an inmate to 
participate in the financial responsibility program or to comply with 
the provisions of the inmate's financial plan shall result in the 
following:
* * * * *
    (7) The inmate will not receive a release gratuity unless approved 
by the warden;
    (8) The inmate will not receive an incentive for participation in 
residential drug treatment programs; and
    (9) The inmate will not be eligible to earn or apply First Step Act 
Time Credits, as described in 18 U.S.C. 3624 and 3632(d)(4), and 28 CFR 
523.40-523.44.
* * * * *
[FR Doc. 2023-00244 Filed 1-9-23; 8:45 am]
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