[Federal Register Volume 62, Number 187 (Friday, September 26, 1997)]
[Rules and Regulations]
[Pages 50791-50794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25534]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 544
[BOP-1036-I]
RIN 1120-AA33
Literacy Program
AGENCY: Bureau of Prisons, Justice.
ACTION: Interim rule.
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SUMMARY: In this document, the Bureau of Prisons is revising its
regulations on the literacy program on an interim basis in order to
include a definition of ``satisfactory progress''. This definition is
one determinant which is statutorily required for the awarding and/or
vesting of good conduct time for certain inmates. In implementing this
change, the Bureau has further revised its regulations on the literacy
program for the sake of clarification or simplification.
DATES: Effective November 3, 1997; comments must be submitted by
November 25, 1997.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is adopting interim
regulations on its literacy program for inmates. A final rule on the
literacy program was published in the Federal Register May 1, 1991 (56
FR 20089), and was corrected on March 17, 1992 (57 FR 9211).
[[Page 50792]]
The Bureau's literacy program, which uses the General Educational
Development (GED) credential as the equivalence for a high school
diploma, requires participation from inmates who are not able to
demonstrate the achievement of a GED credential or a high school
diploma, with certain stated exceptions. Section 20412 of the Violent
Crime Control and Law Enforcement Act of 1994 (VCCLEA) requires, among
other things, that credit toward an inmate's service of sentence shall
not be vested unless the inmate has earned or is making satisfactory
progress toward a high school diploma or an equivalent degree. Under
the Comprehensive Crime Control Act, good conduct time vested annually.
Section 809 of the Prison Litigation Reform Act of 1995 (PLRA)
requires, among other things, that credit toward an inmate's service of
sentence shall vest on the date the inmate is released from custody,
and that in awarding credit, the Bureau shall consider whether the
prisoner, during the relevant period, has earned, or is making
satisfactory progress toward earning, a high school diploma or an
equivalent degree. A separate rulemaking published elsewhere in today's
Federal Register addresses the discretion of the Bureau in awarding
good conduct time credit to an inmate subject to PLRA (i.e., an inmate
whose offense was committed on or after April 26, 1996).
In this document the Bureau is amending its regulations on the
literacy program in order to include a definition of what constitutes
satisfactory progress toward earning a GED credential. As defined in
newly revised Sec. 544.73(b), an inmate subject to VCCLEA or PLRA shall
be deemed to be making satisfactory progress toward earning a GED
credential or high school diploma unless and until the inmate receives
a progress assignment confirming that the inmate refuses to enroll in
the literacy program, that the inmate has been found to have committed
a prohibited act that occurred in a literacy program during the last
240 instructional hours of the inmate's most recent enrollment in the
literacy program, or that the inmate has withdrawn from the literacy
program. When an inmate subject to VCCLEA or PLRA receives a progress
assignment indicating that he or she is not making satisfactory
progress, this assignment shall not be changed to indicate that the
inmate is making satisfactory progress until the inmate is currently
and continuously enrolled in a literacy program for a minimum of 240
instructional hours. Any further withdrawal or finding that the inmate
committed a prohibited act that occurred in a literacy program during
the last 240 instructional hours of the inmate's most recent enrollment
in the literacy program shall result in a progress assignment
indicating that the inmate is again not making satisfactory progress.
Further revisions to the Bureau's regulations on the literacy
program made for the sake of clarification or simplification are
described below.
Previously, regulations in Sec. 544.70 had specified that the
minimum time required for participation is 120 calendar days or until a
GED credential is achieved, whichever occurs first. Based upon the
results of past program experience, 120 calendar days has been shown to
provide sufficient time for the average inmate to achieve a GED
credential. As revised, the Bureau has chosen to restate the time frame
for minimum required participation in terms of instructional hours
(i.e., 240 instructional hours is the equivalent of 120 calendar days).
As revised, the statement of purpose and scope includes reference to
exceptions stated in new Sec. 544.71. Redundant references in
Sec. 544.70 to incentives have been removed.
Section 544.71 has been revised as a more clear statement of
exceptions to mandatory participation. Paragraph (a)(2) contains
additional statutory reference for study and observation cases. The
exception for ``good cause'' formerly contained in paragraph (a)(4) has
been replaced with more specific provisions in new paragraphs (a)(4)
and (b). New paragraph (a)(4) allows for staff to make exceptions on a
temporary basis due to special circumstances. Special circumstances
(including, but not limited to, medical reasons, transfer on writ,
being on the waiting list for initial placement) may make it
temporarily impracticable to participate in the literacy program. Once
the special circumstances are no longer applicable, the inmate shall be
required to participate in the literacy program. The exception in new
paragraph (b) is based upon the existence of an emotional, mental, or
physical impediment to learning which has been documented through
formal diagnostic assessment.
The provisions in former Secs. 544.72 and 544.74 on work promotions
and assignments have been consolidated and revised in a new Sec. 544.74
as noted below. New Sec. 544.72 contains the provisions on incentives
formerly contained in Sec. 544.75.
The provisions in Sec. 544.73 have been revised to include the
definition of satisfactory progress as noted above.
New Sec. 544.74 consolidates provisions on work promotion and
assignments contained in former Secs. 544.72 and 544.74. These
provisions have been revised for the sake of clarity. The revised
provisions clarify that covered assignments above grade 4 include
commissary positions. The revised provisions no longer stipulate that
withdrawal from the literacy program may be used as the basis to remove
an inmate appointed to a grade 4 position pursuant to new
Sec. 544.74(a)(1).
Section 544.75 has been revised to remove specific reference to
calendar days. As noted above, the regulations state this period, where
necessary, in terms of instructional hours.
The Bureau is publishing this regulation as an interim rule in
order to solicit comment on a working definition of ``satisfactory
progress'' without unnecessary delay in applying the definition to
procedures for vesting and awarding good conduct time. As noted above,
other changes in the regulations affect clarity or organization.
Members of the public may submit comments concerning this rule by
writing to the previously cited address. Comments received before
expiration of the deadline will be considered before the rule is
finalized. Comments received after expiration of the deadline will be
considered to the extent practicable.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget pursuant to E.O. 12866. After review of the law and regulations,
the Director, Bureau of Prisons has certified that this rule, for the
purpose of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), does
not have a significant economic impact on a substantial number of small
entities, within the meaning of the Act. Because 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, its
economic impact is limited to the Bureau's appropriated funds.
List of Subjects in 28 CFR Part 544
Prisoners.
Kathleen M. Hawk,
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), part 544 in subchapter C of 28
CFR, chapter V is amended as set forth below.
[[Page 50793]]
Subchapter C--Institutional Management
PART 544--EDUCATION
1. The authority citation for 28 CFR part 544 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
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; 28 U.S.C. 509, 510; 28
CFR 0.95-0.99.
2. Subpart H of part 544 is revised to read as follows:
Subpart H--Literacy Program
Sec.
544.70 Purpose and scope.
544.71 Exceptions to required literacy program participation.
544.72 Incentives.
544.73 Program participation.
544.74 Work assignment limitations.
544.75 Disciplinary action.
Subpart H--Literacy Program
Sec. 544.70 Purpose and scope.
Except as provided for in Sec. 544.71, an inmate confined in a
federal institution who does not have a verified General Educational
Development (GED) credential or high school diploma is required to
attend an adult literacy program for a minimum of 240 instructional
hours or until a GED is achieved, whichever occurs first.
Sec. 544.71 Exceptions to required literacy program participation.
(a) The following inmates are not required to attend the literacy
program:
(1) Pretrial inmates;
(2) Inmates committed for purpose of study and observation under
the provisions of 18 U.S.C. 4205(c), 4241(d), or, effective November 1,
1987, 18 U.S.C. 3552(b);
(3) Sentenced deportable aliens;
(4) Inmates determined by staff to be temporarily unable to
participate in the literacy program due to special circumstances beyond
their control (e.g., due to a medical condition, transfer on writ, on a
waiting list for initial placement). Such inmates, however, shall be
required to participate when the special circumstances are no longer
applicable.
(b) Inmates who have been determined (on the basis of formal
diagnostic assessment) to have a documented emotional, mental, or
physical individual impediment to learning shall not be required to
complete the literacy program beyond those achievement levels indicated
as realistic by the formal diagnostic assessment.
(c) Staff shall document in the inmate's education file the
specific reasons for not requiring the inmate to participate in, or to
complete, the literacy program.
Sec. 544.72 Incentives.
The Warden shall establish a system of incentives to encourage an
inmate to obtain a GED credential.
Sec. 544.73 Program participation.
(a) The Warden or designee shall assign to an education staff
member the responsibility to coordinate the institution's literacy
program. Initially, staff shall meet with the inmate for the purpose of
enrolling the inmate in the literacy program. Subsequently, staff shall
formally interview each inmate involved in the literacy program when
necessary for the purpose of determining a progress assignment. Staff
shall place documentation of these interviews in the inmate's education
file.
(b)(1) For the purposes of 18 U.S.C. 3624, an inmate subject to the
Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) or the
Prison Litigation Reform Act of 1995 (PLRA) shall be deemed to be
making satisfactory progress toward earning a GED credential or high
school diploma unless and until the inmate receives a progress
assignment confirming that:
(i) The inmate refuses to enroll in the literacy program;
(ii) The inmate has been found to have committed a prohibited act
that occurred in a literacy program during the last 240 instructional
hours of the inmate's most recent enrollment in the literacy program;
or
(iii) The inmate has withdrawn from the literacy program.
(2) When an inmate subject to VCCLEA or PLRA receives a progress
assignment indicating that the inmate is not making satisfactory
progress, the assignment shall be changed to indicate satisfactory
progress only after the inmate is currently and continuously enrolled
in a literacy program for a minimum of 240 instructional hours. Any
further withdrawal or finding that the inmate has committed a
prohibited act in a literacy program during the last 240 instructional
hours of the inmate's most recent enrollment in the literacy program
shall result in a progress assignment indicating that the inmate is
again not making satisfactory progress (see paragraphs (b)(1)(ii) and
(iii) of this section).
(c) At the end of 240 instructional hours, excluding sick time,
furloughs, or other absences from scheduled classes, the unit team
during scheduled program review sessions shall meet with the inmate to
encourage continued participation in the literacy program until the
inmate earns a GED credential or high school diploma. At these
meetings, the inmate may elect not to continue in the literacy program,
and no disciplinary action will be taken. The inmate may not
discontinue this program when participation is mandated by statute.
Sec. 544.74 Work assignment limitations.
These limitations on work assignment appointment and promotion
apply to all inmates, including those exempted from required
participation in the literacy program by Sec. 544.71.
(a) Appointment. (1) An inmate who does not meet the literacy
requirement may be assigned to a grade 4 position contingent upon the
inmate's continued enrollment in the literacy program.
(2) An inmate ordinarily must show prior attainment of a GED
credential or high school diploma in order to be considered for a
commissary work assignment above minimum pay level, an institution work
assignment above grade 4 compensation, or an industrial work assignment
above grade four or in a non-graded incentive pay position.
(3) If labor force needs require, an inmate who does not meet the
literacy requirement may be assigned to an industrial non-graded
incentive pay position if the inmate is simultaneously enrolled in a
literacy or related program. Withdrawal from the literacy program shall
result in termination of the assignment. Local Federal Prison Industry
(FPI) management may elect to retain the reassigned inmate in an hourly
rated grade 4 position.
(b) Promotion. An inmate ordinarily must show prior attainment of a
GED credential or high school diploma to be promoted above the minimum
pay level or grade in a commissary work assignment, an institutional
work assignment, or an industrial work assignment. An inmate already in
an assignment above the minimum pay grade who had met prior literacy
requirements when approved for promotion is eligible for further
promotion under the prior standard. Such inmate, however, must meet the
current standard if, due to demotion based upon a poor performance
appraisal, he or she needs to reapply for a promotion.
(c) Exceptions. The Warden may, for good cause, exempt inmates on a
case-by-case basis, from the literacy requirements for work assignment
appointment and promotion. Staff shall document such exemption in the
inmate's education file and central file.
[[Page 50794]]
Sec. 544.75 Disciplinary action.
As with other mandatory programs, such as work assignments, staff
may take disciplinary action against an inmate lacking a GED credential
or high school diploma if that inmate refuses to enroll in, and to
complete, the mandatory 240 instructional hours of the literacy
program.
[FR Doc. 97-25534 Filed 9-25-97; 8:45 am]
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