[Federal Register Volume 64, Number 114 (Tuesday, June 15, 1999)]
[Rules and Regulations]
[Pages 32168-32170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15129]



[[Page 32167]]

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Part V





Department of Justice





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Federal Prison Industries, Inc.



Bureau of Prisons



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28 CFR Parts 345, 540 and 543



Federal Prison Industries (FPI) Inmate Work Programs: Eligibility; 
Correspondence: Return Address; Federal Tort Claims Act; Final Rules 
and Proposed Rule

  Federal Register / Vol. 64, No. 114 / Tuesday, June 15, 1999 / Rules 
and Regulations  

[[Page 32168]]



DEPARTMENT OF JUSTICE

Federal Prison Industries, Inc.

28 CFR Part 345

[BOP-1062-F]

RIN 1120-AA57


Federal Prison Industries (FPI) Inmate Work Programs: Eligibility

AGENCY: Federal Prison Industries, Inc., Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons is amending its 
regulations to limit from consideration for Federal Prison Industries 
(FPI) work assignments pretrial inmates or, with certain exceptions, 
any inmate currently under an order for deportation, exclusion, or 
removal. In addition, any pretrial inmate or, with certain exceptions, 
any inmate in an FPI work assignment currently under an order for 
deportation, exclusion, or removal shall be removed immediately and 
shall be reassigned to a non-FPI work assignment for which the inmate 
is eligible. This amendment is intended to conform with revised 
regulations of the Immigration and Naturalization Service and to help 
ensure that FPI work assignments ordinarily will be allocated to 
sentenced inmates who will be returning to the community within, rather 
than outside, the United States upon release.

DATES: Effective July 15, 1999; all Bureau institutions are to be in 
compliance by October 13, 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 amending its 
regulations on Federal Prison Industries (FPI) inmate work assignments 
(28 CFR part 345). A proposed rule on this subject was published in the 
Federal Register on April 30, 1997 (62 FR 23536).

    Pursuant to statutory authority, it is the policy of the Federal 
Government that convicted inmates confined in Federal prisons, jails, 
and other detention facilities shall work (104 Stat. 4914). FPI is 
further authorized by statute to provide work assignments for inmates 
(18 U.S.C. 4122). These work assignments are designed, in part, to 
allow inmates the opportunity to acquire the knowledge, skills, and 
work habits which will be useful when released from the institution 
(see 28 CFR 345.10).
    In order to ensure that sentenced inmates to be released to the 
community in the United States will be afforded maximum opportunity to 
work in FPI assignments, FPI had proposed to restrict from 
consideration for FPI assignment pretrial inmates and inmates currently 
under an order for deportation or removal, and to remove from an FPI 
assignment any pretrial inmate or inmate currently under a deportation 
or removal order. In keeping with the policy that convicted inmates 
shall work, any inmate so removed would be reassigned to a non-FPI work 
assignment for which the inmate is eligible. While a pretrial inmate is 
not required to work in any assignment other than housekeeping tasks in 
the inmate's own cell and in the community living area, the pretrial 
inmate may be eligible for an institutional assignment if the inmate 
signs a waiver of his or her right not to work (see 28 CFR 551.106).
    Section 345.11 accordingly was proposed to be amended by adding a 
new paragraph (g) to reference the definition of ``pretrial inmate.'' 
Sections 345.35 and 345.42 were proposed to be amended to incorporate 
the above mentioned assignment and dismissal procedures.
    The Bureau received twenty-one comments on the proposed rulemaking. 
All of the comments were opposed in total or in part to adopting the 
proposed amendment as final. None of the comments explicitly addressed 
applicability of the restriction to pretrial inmates. A summary of the 
comments and the agency response follows.
    Several of the commenters claimed that the proposed amendments were 
discriminatory. Two commenters stated that the Bureau was contradicting 
its statement in Sec. 345.35(a) that Federal Prison Industries does not 
discriminate on the basis of race, color, religion, ethnic origin, age, 
or disability (one of the two more specifically cited ethnic origin). 
Another commenter stated that the proposed regulations would make 
foreign inmates feel like second-class inmates. Similarly, another 
commenter stated that the proposed regulations would result in unequal 
treatment and another commenter stated that the same rules should apply 
to all inmates.
    The Bureau, in response, notes that the proposed restriction was to 
be applicable to pretrial inmates and to inmates under an order for 
deportation or removal. The restriction is therefore not based directly 
upon ethnic origin, for example, but upon an administrative status 
pertaining to deportation or removal and upon the correctional 
management needs of sentenced inmates. The purpose of the restriction, 
as stated in the published proposed rule, is to ensure that sentenced 
inmates to be released to the community in the United States will be 
afforded opportunities to work in FPI assignments. As stated in 
Sec. 345.10, FPI work assignments are designed, in part, to allow 
inmates the opportunity to acquire the knowledge, skills, and work 
habits which will be useful when released from the institution. FPI 
work assignments provide inmates with higher remuneration than do 
institution work assignments. There are more inmates in the Federal 
system than there are available FPI assignments. Consequently, FPI 
assignments are coveted positions which are filled from waiting lists 
of eligible inmates. Because FPI assignments enhance the ability of 
inmates to work successfully in the domestic marketplace and thereby 
lowers the risk of recidivism, allocating the assignments to those 
inmates who will likely be accessible to the domestic marketplace after 
their release is a proper exercise of the Bureau's discretion in 
correctional management.
    Subsequent to consultation with the Immigration and Naturalization 
Service (INS), the restriction has been adjusted in conformance with 
revised INS regulations (see 8 CFR 241.5(c)) and practices to include 
orders for exclusion, to provide for exceptions when the inmate cannot 
be removed because no country will accept the inmate, and to include 
the phrase ``or detainee'' where technically appropriate. In those 
instances where the Attorney General has determined that the inmate or 
detainee cannot be removed from the United States because the 
designated country of removal will not accept the inmate or detainee's 
return, the inmate or detainee may be considered or may remain eligible 
for an FPI assignment. Under INS procedures, an inmate or detainee in 
these circumstances may at some point qualify for release in this 
country and may realize the intended benefit of an FPI assignment. 
Under internal agency procedures, INS is responsible for informing the 
Bureau when an inmate/detainee's designated country of removal will not 
accept his/her return.
    Many of the commenters stated that the wages received from FPI work 
assignments were useful as a source of income to the inmate or to the 
inmate's family. Several commenters noted the rehabilitative nature of 
FPI work assignments. FPI work assignments are

[[Page 32169]]

necessarily limited in number, and the purpose of the proposed 
rulemaking is to allocate this resource prudently on the basis of 
correctional management needs rather than upon the varied financial 
needs of inmates.
    Several commenters stated that it would be unjust to remove inmates 
already in an FPI assignment without cause. This rulemaking is intended 
to establish a generic cause for removal based upon the correctional 
management needs noted above. One commenter claimed that the amendment 
was an ex post facto law and therefore was unconstitutional. The Bureau 
notes that inmates have no entitlement to FPI assignments. The 
amendment is not intended to be punitive but, as noted above, is being 
made for correctional management reasons.
    Three commenters recommended expedited processing of a deportation 
or removal hearing if remunerations from an FPI assignment were not 
available to inmates under a deportation or removal order. Expedited 
processing of a deportation or removal hearing is subject to regulation 
by the Immigration and Naturalization Service (INS) and the Executive 
Office for Immigration Review (EOIR).
    One commenter, while recognizing and agreeing with the need to 
remove deportable inmates from participating in a program designed to 
train and rehabilitate incarcerated felons in order to prepare them for 
release back into American society, recommended that an inmate already 
in an FPI assignment who is also under an order of deportation be 
removed no earlier than 90 days after the effective date of the rule 
change and that non-U.S. citizens would not be considered for FPI work 
assignments until after their INS hearings had taken place. These 
recommendations are intended to minimize disruption at institutions 
where a significant percentage of the inmate population is either under 
deportation orders or is awaiting INS hearings. In response, the Bureau 
agrees to delay compliance by the institution by up to 90 days after 
the effective date of the regulation. The Bureau believes that the 
commenter's second recommendation that non-U.S. citizens not be 
considered for FPI work assignments until after their INS hearings had 
taken place is unnecessarily presumptive. The existence of an order for 
deportation, exclusion, or removal is readily identifiable. Any 
anticipated benefit in work assignment efficiency which may result from 
the recommended change is outweighed by the correctional management 
needs addressed by reliance upon the proposed criterion.
    After due consideration of comments received, the Bureau is 
adopting the proposed rule as final with the change noted above as to 
orders of exclusion and exceptions. Members of the public may submit 
further comments concerning this rule by writing to the previously 
cited address. These comments will be considered but will receive no 
response in the Federal Register.

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 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 section 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 345

    Prisoners.
Kathleen Hawk Sawyer,
Director, Bureau of Prisons, and Commissioner of Federal Prison 
Industries.
    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 and the Board of Directors, Federal Prison Industries 
in 28 CFR 0.96(o) and 0.99, part 345 in chapter III of 28 CFR is 
amended as set forth below.

PART 345--FEDERAL PRISON INDUSTRIES (FPI) INMATE WORK PROGRAMS

    1. The authority citation for 28 CFR part 345 continues to read as 
follows:

    Authority: 18 U.S.C. 4126, 28 CFR 0.99, and by resolution of the 
Board of Directors of Federal Prison Industries, Inc.

    2. In Sec. 345.11, paragraph (g) is added to read as follows:


Sec. 354.11  Definitions.

* * * * *
    (g) Pretrial inmate--The definition of pretrial inmate in 28 CFR 
551.101(a) is applicable to this part.
    3. In Sec. 345.35, paragraph (a) is revised to read as follows:


Sec. 345.35  Assignments to FPI.

    (a) An inmate or detainee may be considered for assignment with FPI 
unless the inmate is a pretrial inmate or is currently under an order 
of deportation, exclusion, or removal. However, an inmate or detainee 
who is currently under an order of deportation, exclusion, or removal 
may be

[[Page 32170]]

considered for assignment with FPI if the Attorney General has 
determined that the inmate or detainee cannot be removed from the 
United States because the designated country of removal will not accept 
his/her return. Any request by an inmate for consideration must be made 
through the unit team. FPI does not discriminate on the bases of race, 
color, religion, ethnic origin, age, or disability.
* * * * *
    4. In Sec. 345.42, paragraph (d) is added to read as follows:


Sec. 345.42  Inmate worker dismissal.

* * * * *
    (d) Any inmate or detainee who is a pretrial inmate or who is 
currently under an order of deportation, exclusion, or removal shall be 
removed from any FPI work assignment and reassigned to a non-FPI work 
assignment for which the inmate is eligible. However, an inmate or 
detainee who is currently under an order of deportation, exclusion, or 
removal may be retained in the FPI assignment if the Attorney General 
has determined that the inmate or detainee cannot be removed from the 
United States because the designated country of removal will not accept 
his/her return.
[FR Doc. 99-15129 Filed 6-14-99; 8:45 am]
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