E8-15855. Inmate Work and Performance Pay Program: Reduction in Pay for Drug- and Alcohol-Related Disciplinary Offenses

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

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 [phone].

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 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 § 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 § 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.

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

1. Amend 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. In § 545.25, add paragraph (e) to read as follows:

§ 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.