[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]
[[Page 24467]]
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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
[[Page 24468]]
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
[[Page 24469]]
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]
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