[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]
BILLING CODE 4410-05-P