[Federal Register Volume 64, Number 87 (Thursday, May 6, 1999)]
[Proposed Rules]
[Pages 24468-24469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11332]



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Part III





Department of Justice





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Bureau of Prisons



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28 CFR Part 551



Smoking/No Smoking Areas; Proposed Rule

  Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed 
Rules  

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 551

[BOP-1084-P]
RIN 1120-AA79


Smoking/No Smoking Areas

AGENCY: Bureau of Prisons, Justice.

ACTION: Supplemental notice of proposed rule.

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SUMMARY: In this document, the Bureau of Prisons is proposing a 
supplemental notice of proposed rule pertaining to smoking/no smoking 
areas in Bureau of Prisons facilities. The supplemental notice retains 
the requirement to have a designated area for smoking as part of an 
authorized religious activity. The supplemental notice makes clear that 
the Warden may designate only outdoor smoking areas for general use and 
that these areas must be clearly identified. The supplemental notice 
also requires the concurrence of the Regional Director if the Warden 
chooses not to designate smoking areas for general use. Once this 
occurs, the Regional Director's concurrence is also required if the 
Warden later chooses to designate smoking areas for general use at the 
institution. The notice is intended to promote a clean air environment 
and to protect the health and safety of staff and inmates.

DATES: Comments due by July 6, 1999.

ADDRESSES: Rules Unit, 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 proposing a 
supplemental notice of its proposed rule on smoking (28 CFR part 551, 
subpart N). The proposed rule previously published on this subject on 
November 25, 1998 (63 FR 65502) eliminated indoor smoking in all 
institutions except when smoking is part of an authorized religious 
activity. The Bureau received comment from nine respondents. As part of 
the Bureau's response to comment, this supplemental notice of proposed 
rule making allows the Warden, with the Regional Director's 
concurrence, to choose not to designate any smoking areas for general 
use. Once this occurs, the Regional Director's concurrence is required 
if the Warden later chooses to designate smoking areas for general use 
at the institution.
    The commenters, all current inmates except one, believe that 
prohibiting smoking within Bureau facilities will have little impact on 
reducing smoking and improving the air quality. Specifically, four 
commenters stressed that the current restrictions on smoking are rarely 
enforced. One commenter alleging that most staff are smokers believes 
the proposed regulations are not clear whether staff must also adhere 
to the ban on indoor smoking. This commenter included statements from 
four individuals concurring with the above-noted conclusions. In 
response, the Bureau notes that staff are responsible for ensuring that 
Bureau rules are followed. Maintaining a smoke-free environment 
necessarily means that staff will be bound by the restrictions. The 
Bureau is committed to investigate reported violations of the smoking 
policy whether by staff or inmates. As a further instance of the 
seriousness of the Bureau's commitment, the Bureau published a proposed 
amendment to its discipline policy which elevated violations of the 
smoking policy from a low category prohibited act to a moderate 
category prohibited act on February 25, 1999 (64 FR 9432).
    As a practical alternative, three commenters support non-smoking 
units instead of a total prohibition against indoor smoking. The Bureau 
has an obligation to its employees and to the inmates in its custody to 
provide the safest and healthiest environment possible. That is why the 
Bureau is proposing that the Warden be permitted, with the Regional 
Director's concurrence, to choose not to designate smoking areas for 
general use, or in the alternative, restricting smoking to only visibly 
designated outdoor locations with the exception that an indoor smoking 
area may be designated to be used exclusively for authorized religious 
activities. Dividing the living units between smoking and non smoking 
will not eliminate the health risks associated with passive inhalation 
of second-hand smoke. Two commenters suggest that all tobacco products 
be banned and no tobacco products be sold in federal prisons. The 
supplemental notice will assist the Bureau in evaluating the merit of 
these comments. The commissary at smoke-free institutions will not 
offer tobacco products for purchase.
    One commenter suggests installing smoke detectors in all cells. The 
Bureau is in compliance with fire safety codes on smoke detectors in 
its housing units. The Bureau does not believe additional smoke 
detectors are necessary because a total ban on indoor smoking 
simplifies enforcement.
    One commenter expressed concern that tobacco use not be restricted 
for religious purposes. The supplemental notice includes a revision to 
clarify that smoking as part of an authorized religious activity is to 
be allowed.
    One commenter addressed the lack of health services support to 
those wishing to quit smoking. He feels health services should offer 
nicotine patches and nicorette gum. The Bureau understands that 
quitting smoking, under the best of circumstances, is a difficult task. 
That is why the Bureau will offer smoking cessations programs and 
nicotine patches will be available at inmate expense. These programs 
are available through normal health care programs offered to inmates.
    Four commenters are against eliminating the Warden's authority to 
designate indoor smoking areas that provide smokers protection from 
adverse weather. They also expressed concern that the proposed rule 
does not provide for erection of a protective environment from adverse 
weather. The Bureau's primary goal is to protect inmates and staff from 
the hazards of tobacco smoke. The proposed regulations do not preclude 
the Warden from making some provision to accommodate outdoor smokers in 
adverse weather conditions.
    Interested persons may participate in this proposed rulemaking by 
submitting data, views, or arguments in writing to the Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First Street, NW., 
HOLC Room 754, Washington, DC 20534. Comments received during the 
comment period will be considered before final action is taken. 
Comments received after the expiration of the comment period will be 
considered to the extent practicable. All comments received remain on 
file for public inspection at the above address. The proposed rule may 
be changed in light of the comments received. No oral hearings are 
contemplated.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national

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government and the States, or on distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined 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, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation 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 Sec. 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.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Roy Nanovic, Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First St., 
Washington, DC 20534; telephone (202) 514-6655.

List of Subjects in 28 CFR Part 551

    Prisoners.
Kathleen Hawk Sawyer,
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 551 in subchapter C of 28 
CFR, chapter V is proposed to be amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 551--MISCELLANEOUS

    1. The authority citation for 28 CFR part 551 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 1512, 3621, 3622, 3624, 4001, 
4005, 4042, 4081, 4082 (Repealed in part as to offenses committed on 
or after November 1, 1987), 4161-4166 (Repealed 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; Pub. L. 99-500 (sec. 209); 28 CFR 0.95-0.99; Attorney 
General's May 1, 1995 Guidelines for Victim and Witness Assistance.

    2. Subpart N is revised to read as follows:

Subpart N--Smoking/No Smoking Areas

Sec.
551.160  Purpose and scope.
551.161  Definitions.
551.162  Designated smoking areas.

Subpart N--Smoking/No Smoking Areas


Sec. 551.160  Purpose and scope.

    To promote a clean air environment and to protect the health and 
safety of staff and inmates, the Bureau of Prisons prohibits smoking in 
its institutions unless the Warden authorizes smoking in a designated 
smoking area.


Sec. 551.161  Definitions.

    For purpose of this subpart, smoking is defined as carrying or 
inhaling a lighted cigar, cigarette, pipe, or other lighted tobacco 
products.


Sec. 551.162  Designated smoking areas.

    (a) The Warden must designate a smoking area for use in instances 
where smoking is to be part of an authorized religious activity.
    (b)(1) The Warden may designate only outdoor smoking areas for 
general use (that is, for smoking which is not part of an authorized 
religious activity). These smoking areas must be clearly identified.
    (2) The Warden, with the Regional Director's concurrence, may 
choose not to designate smoking areas for general use. Once this 
occurs, the Regional Director's concurrence is required if the Warden 
later chooses to designate smoking areas for general use at the 
institution.

[FR Doc. 99-11332 Filed 5-5-99; 8:45 am]
BILLING CODE 4410-05-P