1.This Act may be cited as the Fair Access and Individual Responsibilities Act of 2004
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2.Industrial operations in Federal Prisons
(a)Section 4121 of title 18, United States Code, is amended by striking all after the section heading and inserting the following:
(a)Federal Prison Industries is a government corporation of the District of Columbia.
(b)
(1)Federal Prison Industries is administered by a board of directors, composed of 12 directors appointed by the Attorney General, of which 4 shall be appointed as follows:
(A)1 director upon the recommendation of the Speaker of the House of Representatives.
(B)1 director upon the recommendation of the minority leader of the House of Representatives.
(C)1 director upon the recommendation of the majority leader of the Senate.
(D)1 director upon the recommendation of the minority leader of the Senate.
(2)A director shall be appointed to a term of 4 years and may be reappointed.
(3)A director shall serve without compensation.
(c)The duty of the board shall be to carry on and facilitate such industrial operations in Federal correctional institutions as the Attorney General determines.
(d)The Director of the Bureau of Prisons shall serve as chief executive officer of the corporation.
(e)
(1)The Attorney General shall appoint an independent review panel to advise the board of directors regarding the type and quantity of products to be produced by Federal Prison Industries and conditions of hire and work consistent with this chapter.
(2)The panel shall be comprised of—
(A)1 member representing the Department of Commerce;
(B)1 member representing the Department of Labor;
(C)1 member representing the Department of the Treasury;
(D)1 member representing the International Trade Commission;
(E)1 member representing the Small Business Association;
(F)1 member representing the Economic Development Administration;
(G)1 member representing the business community;
(H)1 member representing organized labor;
(I)1 member representing taxpayers;
(J)1 member representing crime victims;
(K)1 member representing the Department of Health and Human Services Office of Child Support Enforcement;
(L)1 member representing minorities overrepresented in prison populations;
(M)not less than 2 members representing, and appointed from among, inmates working in Federal Prison Industries; and
(N)such other members as the Attorney General considers appropriate.
(3)Members of the panel shall serve without compensation.
(4)The Federal Advisory Committee Act shall not apply with respect to the panel..
(b)Section 4122 of title 18, United States Code, is amended by striking all after the section heading and inserting the following:
(a)The Attorney General shall determine in what manner and to what extent industrial operations shall be carried on in Federal correctional institutions.
(b)The Attorney General shall conduct such operations so as to maximize—
(1)the productivity, legal income, and financial responsibility of every Federal corrections inmate;
(2)the unsubsidized competitive opportunities of industrial operations in Federal correctional institutions; and
(3)the profit opportunities of private and non-profit firms employing inmates in Federal correctional institutions, within the rules of the normal competitive economy and subject to the requirements of safe and secure correctional facilities.
(c)Within requirements of safety and security, the Attorney General shall be responsible for protecting and facilitating the participation rights of each Federal corrections inmate as well as for facilitating the ability of each inmate to meet that inmate’s financial responsibilities through successful competitive participation in the economy of the United States.
(d)Availability of opportunitiesThe Attorney General shall endeavor to make available to inmates who have been committed to the custody of the Bureau of Prisons opportunities, free from discrimination, to work or be employed in a Federal Prison Industries shop.
(e)The Attorney General may set standards regarding education and conduct for those inmates who work in a Federal Prison Industries shop.
(f)Except where safety and security of individual inmates requires exception, the voluntary movement of inmates among classes of institutional maintenance, work, or employment shall not be inhibited..
3.
(a)Purchase of prison-made products by Federal departmentsSection 4124 of title 18, United States Code, is amended by striking products of the industries authorized by this chapter
and inserting products of Class A industries authorized by this chapter
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(b)
(1)Chapter 307 of title 18, United States Code, is amended by adding after section 4124 the following new sections:
4124A.
(a)In this chapter, a Class A industry is an industry established under this chapter as of December 31, 2002.
(b)Limitations on number of workersThe number of inmates working in Class A industries may not exceed—
(1)the number of inmates working in Class A industries as of December 31, 2002, during the period beginning on the date of the enactment of this section and ending on December 31, 2015;
(2)75 percent of the number referred to in paragraph (1), during the period beginning on January 1, 2016, and ending on December 31, 2020; and
(3)50 percent of the number referred to in paragraph (1), after December 31, 2020.
(c)Limitations on percentage of workersOf the total population of inmates, the percentage who work in Class A industries may not exceed—
(1)the percentage who worked in Class A industries as of December 31, 2002, during the period beginning on the date of the enactment of this section and ending on December 31, 2015;
(2)75 percent of the percentage referred to in paragraph (1), during the period beginning on January 1, 2016, and ending on December 31, 2020; and
(3)50 percent of the percentage referred to in paragraph (1), after December 31, 2020.
(d)The types of industries in Class A industries may not expand beyond the industries in existence as of December 31, 2002.
4124B.
(a)In this chapter, a Class B industry is an industry established on or after January 1, 2005, that meets the requirements of subsection (b).
(b)An industry meets the requirements of this subsection if, and only if, it meets the following requirements:
(1)It is carried out by a competitive entity unrelated to a Class A industry that produces goods or services for sale in government or open markets, including in interstate and international commerce.
(2)The entity is an independent taxpaying unit subject to all opportunities and obligations affecting a similarly located private firm.
(3)All civilian and inmate workers of the entity are identically covered under wage and benefit plans and all Federal and applicable State and local laws covering civilian employees, including but not limited to all provisions of the Fair Labor Standards Act, the National Labor Relations Act, the Americans With Disabilities Act, and health and safety standards affecting private firms.
(4)The entity is subject to all license, permit, and tax obligations of a similarly located private firm.
(5)Any land, buildings, capital equipment, utilities, services, or staff assistance (except security) owned or provided to the entity by Federal Prison Industries are obtained in an arms-length, open, competitive bidding process maximizing returns to taxpayers.
(6)The entity does not receive from Federal Prison Industries any implicit or explicit subsidy not equivalently offered to other firms.
(7)The entity, before engaging in a business, offers for competitive bid all resources, including opportunities to recruit inmate employees, to firms in the locale engaged in the proposed line of business.
(8)Mandatory preference does not apply to the entity.
4124C.
(a)In this chapter, a Class C industry is an industry established on or after January 1, 2005, that meets the requirements of subsection (b).
(b)An industry meets the requirements of this subsection if, and only if, it meets the following requirements:
(1)It is carried out by a private entity located in a Federal correctional institution that produces goods or services for sale in government or open markets, including in interstate and international commerce.
(2)The entity employs convicts or prisoners who meet the requirements of each paragraph of section 1761(c) of this title.
(3)The entity meets the same requirements that an entity must meet for participation in the State Prison Industry Enhancement Certification program of the Department of Justice.
(4)The entity meets any other requirements that the Federal Bureau of Prisons may prescribe under subsection (c).
(c)
(1)The Federal Bureau of Prisons shall prescribe the other requirements referred to in subsection (b)(4). The first such requirements shall be published not later than 180 days after the date of the enactment of this section.
(2)The requirements shall be designed to maximize opportunities for private and nonprofit firms to compete for efficient operations in Federal correctional facilities while maintaining necessary security. The requirements shall ensure that a Class C industry may be established, invested in, or participated in, by inmates, so long as—
(A)normal conditions of law are met;
(B)the business or investment poses no significant threat to the safety or security of the institution; and
(C)inmate entrepreneurs and managers exercise no notable control or influence over employed inmates outside the workplace.
4124D.
(a)In this chapter, a Class D industry is a pilot industry that is created for purposes of testing reform of inmate employment and prison industries and that meets the requirements of subsection (b).
(b)An industry meets the requirements of this subsection if, and only if, it meets the following requirements:
(1)Inmate participation is voluntary.
(2)The entity carrying out the industry meets all health and safety regulations.
(3)The Attorney General determines that the industry is safe, fair, and devised to increase inmate economic well-being.
(4)It is a legitimate test industry meant to be preliminary to wider application or for purposes of determining whether there should be a proposed change in law.
(5)The entity carrying out the industry has adequate public oversight and independent evaluation.
(c)The Federal Bureau of Prisons may establish up to 20 separate Class D industries, employing no more than a cumulative total of 2000 inmates over the life of the Class D industry program.
(d)Relationship to class A, b, and c industriesClass D industries do not have to comply with the requirements of class A, B, and C industries, as set forth in sections 4124A, 4124B, and 4124C.
(e)The Class D industries program shall terminate on December 31, 2020.
4124E.Other industries prohibitedAn industry may not be established under this chapter unless it is a Class A industry under section 4124A, a Class B industry under section 4124B, a Class C industry under section 4124C, or a Class D industry under section 4124D..
(2)The table of sections at the beginning of such chapter is amended by adding at the end the following new items:
4124A. Class A industries
4124B. Class B industries
4124C. Class C industries
4124D. Class D industries
4124E. Other industries prohibited.
4.Repeal of mandatory source provisionsSection 4124 of title 18, United States Code, is amended by adding at the end the following new subsection:
(e)
(1)Except as provided in paragraph (2), this section shall not apply after December 31, 2010.
(2)This section shall apply with respect to Federal Prison Industries at a specific correctional facility for a period not exceeding 2 years after December 31, 2010, if the Attorney General—
(A)certifies that national security or security of the facility would be endangered if the section ceased to apply with respect to the facility; and
(B)publishes a plan for the elimination, by the end of the period for which the applicability is extended under this paragraph, of the conditions causing the endangerment of national security or security of the facility..
5.
(a)Chapter 307 of title 18, United States Code, is amended by adding after section 4124E (as added by section 3) the following new section:
4124F.
(a)Within the requirements of safe and secure confinement, the Attorney General shall modify correctional practices to improve the attractiveness and business efficiency of Federal correctional facilities to ensure maximum employment of inmates at prevailing wages.
(b)A Federal inmate employed in a Class B industry or a Class C industry, and a State or local inmate employed in connection with the Prison Industry Enhancement Certification program of the Department of Justice, shall be paid at a wage not less than the prevailing wage in the locality, except—
(1)to the degree the productivity of individual inmates or subgroups of inmates can be reasonably demonstrated to lag that of civilian workers in the locality, and then only for the period during which their productivity lags, as demonstrated on an annual basis and certified by the Department of Employment Services in the host State; or
(2)to the degree unavoidable inefficiencies or risks of operating in a correctional setting deter a facility’s hiring inmates at prevailing wages, as evidenced by its inability to attract enough firms to employ 50 inmates at prevailing wages, provided that—
(A)the reduction in any inmate’s wage is no more than 50 percent of the difference between the Federal minimum wage and the determined prevailing wage;
(B)the full value of the reduction, to the limit of the prescribed deduction, is credited to the inmate in lieu of deductions for board and room;
(C)the inefficiencies, efforts to mitigate them, and justifications for their persistence are documented and published; and
(D)the inefficiency is certified annually by the Attorney General or a State attorney general; or
(3)during the first 24 months of a new firm or new Class B industry’s operation in a correctional facility.
(c)In all instances justifying sub-prevailing wages because of reduced productivity, the host correctional facility will have in place reasonable measures including, but not limited to, access to education and appropriate training, to increase the productivity of the affected inmates.
(d)No facility may contract with or establish a firm employing inmates at less than prevailing wages unless it has first by public notice in the Federal Register and by other effective means offered opportunities to all firms to compete for employment of inmates at the facility..
(b)The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 4124E (as added by section 3) the following new item:
4124F. Wage rates.
6.Incentives to trade organizations and non-profits
(a)From amounts made available to carry out this section, the Attorney General may make matching grants to business trade organizations, labor organizations, and human rights and non-profit organizations to attract firms and create business entities in Federal and State correctional settings.
(b)The purpose of a matching grant under subsection (a) shall be to encourage investment and innovation in bringing inmates into successful open market employment.
(c)A matching grant under subsection (a) may be made for not more than five years, in an amount not to exceed $200,000 per year.
(d)Not less than 20 percent of amounts made available to carry out this section shall be used for research and evaluation.
7.Inmate financial responsibilities
(a)Chapter 307 of title 18, United States Code, is amended by adding after section 4124F (as added by section 5) the following new section:
4124G.Inmate financial responsibilities
(a)The Attorney General shall facilitate the success of each inmate in meeting reasonably proportioned financial obligations to the victims of that inmate, the children and family of that inmate, to taxpayers, and the inmate individually. In particular, the Director of the Bureau of Prisons shall coordinate with working inmates and courts, family services, and offices of child support enforcement to ensure victim compensation, restitution, family support, establishment of paternity and reasonable child support orders, payment toward any other court-ordered obligations, to contribute toward the costs of incarceration, as well as for reasonable actions to encourage prudent purchasing, saving, and investment by inmates.
(b)Deductions may be made from the earnings of an inmate in a Class B industry only for taxes and normal payroll deductions, court-ordered deductions for any purpose, victim compensation, restitution, family support, child and family support, and contributions to costs of incarceration. Deductions may not, in total, exceed 80 percent of gross pay. No deduction from any inmate's earnings for costs of incarceration, victim compensation, or restitution can exceed the aggregate average rate of deductions for family or child support. The Attorney General may require and monitor savings, and Federal Prison Industries shall encourage prudent interest-earning savings. Inmates shall have full access to Federal Prisons credit union savings or investment accounts on terms identical to those offered civilian employees for all required savings. Although savings may be required from the 20 percent of gross income remaining for the inmate, at least half of the remainder shall be held exempt from any deduction ordered by Federal Prison Industries or any court and will accrue solely to the discretion of the inmate wage earner. Records of all deductions will be maintained by category and compiled annually for public release.
(c)Deductions may be made from the earnings of an inmate in a Class C industry in the same manner as deductions may be made from the earnings of an inmate in a Prison Industry Enhancement Certification program of the Department of Justice. .
(b)The table of sections at the beginning of such chapter is amended by adding after the item relating to section 4124F (as added by section 5) the following new item:
4124G. Inmate financial responsibilities.
8.Support by other Federal agencies
(a)From amounts made available to carry out this section, the Attorney General shall facilitate other Federal, State, and other agencies increasing the education, skills, and economic productivity of the Federal inmate population and in assisting inmates in meeting financial obligations.
(b)Inmate and industry rightsNo Federal inmate and no Class A, Class B, or Class C industry of Federal Prison Industries may be prohibited from obtaining the services of a Federal agency for which that inmate or industry is otherwise qualified, so long as institutional safety and security are preserved.
(c)Authorization of appropriationsThere are authorized to be appropriated $50,000 for each of fiscal years 2005 through 2015 for each of the Departments of Commerce, Education, Justice, Health and Human Services, Labor, and Treasury, to identify and begin to effect linkages between Departmental programs and services serving Federal, State, and local inmates and correctional industries.
9.
(a)Establishment of proceduresNot later than 1 year after the date of the enactment of this Act, the Director of the Bureau of Prisons shall establish procedures to ensure that inmate workers have the right to form and join a labor organization of their own choice and to engage in collective bargaining.
(b)Such procedures shall—
(1)ensure employer and prison authority neutrality with regard to the exercise of collective bargaining rights by inmate workers;
(2)provide for a right of inmate workers to withhold services in the event of a dispute over terms and conditions of employment;
(3)enable inmate workers to initiate collective bargaining upon a showing by petition that a majority of workers of a unit appropriate for collective bargaining wish to be represented by an individual or labor organization (except that bargaining unit determinations will be made in accordance with the requirements of section 9(b)(3) of the National Labor Relations Act (29 U.S.C. 159(b)(3)));
(4)provide for binding arbitration if the inmate workers and the employer are unable to negotiate an initial collective bargaining agreement in a timely manner; and
(5)otherwise afford inmate workers with similar rights to those afforded to employees under the National Labor Relations Act (29 U.S.C. 151 et seq).
10.
(a)The Attorney General shall establish inmate worker councils in each Federal correctional institution, including all inmates working in Class A, B, or C industries of Federal Prison Industries. The councils shall be for the purposes of—
(1)increasing productivity, quality, and income opportunity, including recruiting new firms;
(2)representing common workplace interests of inmate employees, including in negotiation with Federal Prison Industries and firm management; and
(3)intersite and public communication representing inmate workers.
(b)Communication and participationCouncils will be designed to encourage open communication about workplace issues within the bounds of safe and secure confinement. Each employed inmate shall have the right to participate in inmate councils, and local and national leadership of such councils shall be chosen by inmates in a free and democratic manner.
(c)Non-workplace issues excludedCorrections issues whose primary impact is other than the workplace shall not be considered in inmate worker councils.
(d)Approval of Class C agreementsNo agreement for a Class C industry may be approved without review and comment by the facility’s inmate worker council. A council shall have full access to all terms and conditions of the proposed agreement affecting their employment, work content, duties, hours, pay, benefits, and other working conditions. Before such an agreement is signed, inmate worker council comments and recommendations must receive serious consideration by facility management and facility management must submit a formal reply to the council on each recommendation. The council, at its discretion, may publish the recommendations and response in their entirety.
(e)The Attorney General shall ensure that workplace issues raised by any inmate through worker councils, whose reasonable consequences are legal, are exempt from correctional disciplinary action, workplace retaliation, or loss of any right or privilege.
(f)Reasonable council expenses shall be funded from that portion of deductions from inmate gross wages for board and room.
11.
(a)The Attorney General shall facilitate creation of councils of entities operating Class B or C industries in Federal correctional institutions. The councils shall be for the purposes of improving efficiency, competitiveness, employment, and profitability of such entities, improving working relationships with Federal institutions and the Federal Bureau of Prisons, as well as for improving safety, security, and public understanding of Federal prison industry programs.
(b)Such councils shall exclusively address issues affecting workplace efficiency and success. Corrections issues whose primary impact is other than the workplace or business efficiency shall not be considered in business councils.
12.Workplace discipline and workplace issues
(a)This Act and the amendments made by this Act apply solely to workplace operations in correctional facilities regarding the production of goods and services for agencies or open markets other than the operation of the specific correctional facility. They do not apply to work in institutional maintenance or to correctional matters of any sort beyond the workplace.
(b)Except where a specific workplace action can be shown to directly threaten or harm correctional safety or security, workplace issues involving inmates in Class A, B, or C industries must be addressed solely in the workplace with no correctional consequence. Correctional disciplinary procedures and transfers shall not be used to address inmate workplace issues, including issues raised in an otherwise legal collective bargaining process.
13.Correctional institution locationsIn locating new correctional institutions, the Attorney General will favorably consider locations that increase or maximize Federal inmates’ opportunities for successful open-market employment and competitive participation in the United States economy, along with opportunities for education and training.
14.Research and pilot program supportThere are authorized to be appropriated to the Federal Bureau of Prisons, to assist the Federal Bureau of Prisons in transitioning to successful open-market participation for inmates and industries, $2,000,000 for each of fiscal years 2006 through 2015, to be available for—
(1)external expertise in designing and effecting programs for Class B and C industries;
(2)research and followup support;
(3)staffing support to initiate such programs; and
(4)outreach support.
15.
(a)Not later than June 30 of each year, the Attorney General shall publish a report, broken down by Class A, B, and C industries, on Federal Prison Industries. The report shall include—
(1)numbers of working inmates by industry and occupation;
(2)distributions of hours worked and hourly and annual incomes;
(3)deductions by class of deduction;
(4)annual value of product;
(5)injuries and workers compensation claims; and
(6)any other statistics necessary for a public accounting of inmate work.
(b)Publications by private firmsWith the exception of inmate wage disclosure, the Attorney General shall not require private firms employing inmates to publish information which would both—
(1)not otherwise be required; and
(2)could reasonably be construed to harm the firm’s competitive position.
(c)Concurrently with the report required by subsection (a), the Attorney General shall publish annually a report summarizing major events and progress in each of Class A, B, and C industries of Federal Prison Industries. The report shall—
(1)identify all significant events and decisions affecting inmate work opportunity, conditions of work, pay and benefits, and events affecting inmate participation in the workplace; and
(2)include an annual national report prepared by inmate worker and business councils including whatever information those councils considers appropriate.