[Federal Register Volume 69, Number 57 (Wednesday, March 24, 2004)]
[Rules and Regulations]
[Pages 13735-13737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6495]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 551

[BOP-1084-F]
RIN 1120-AA79


Smoking/No Smoking Areas

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises its 
regulations pertaining to smoking/no smoking areas in Bureau 
facilities. The revised regulations require the Warden to designate a 
smoking area for use in instances where smoking is to be part of an 
authorized religious activity. If the Warden designates smoking areas 
for general use (that is, for smoking which is not part of an 
authorized religious activity), the area must be in visibly designated 
outdoor locations. The amendment 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. We intend this amendment to promote 
a clean air environment and to protect the health and safety of staff 
and inmates.

EFFECTIVE DATE: This rule will be effective on July 15, 2004.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: The Bureau adopts as final a revision of its 
regulations in 28 CFR part 551, subpart N on smoking. We published a 
proposed rule on this subject on November 25, 1998 (63 FR 65502), which 
we modified in a supplemental notice on May 6, 1999 (64 FR 24468).
    Both the original proposed rule and the supplemental notice would 
eliminate indoor smoking (with the

[[Page 13736]]

exception of smoking which is to be part of an authorized religious 
activity). The supplemental notice further allowed the Warden to 
eliminate outdoor smoking. The Regional Director's concurrence would be 
required either for the Warden's initial decision to eliminate outdoor 
smoking or for a subsequent decision to reinstate outdoor smoking. 
After due consideration of comments received, the Bureau is adopting as 
final the regulations proposed in the supplemental notice, with one 
change: After internal consideration, to promote accuracy of our 
regulations, we retain the original language in Sec.  551.160, Purpose 
and Scope.
    The supplemental notice contained a response to comments received 
on the original proposed rule. The Bureau received further comments on 
the supplemental notice. This final rule contains a response to 
comments received on the supplemental notice together with the response 
to comments received on the original proposed rule.
    One commenter objected to the provisions in the supplemental 
notice, stating that he believed that the regulations currently in 
effect which govern smoking at Bureau facilities are adequate to 
protect inmates and staff from second-hand smoke. The commenter 
believed eliminating all indoor smoking will create hardships for staff 
and inmates alike and that Wardens should not be given the discretion 
to designate an institution as totally smoke-free. The commenter 
suggests that a resulting lack of uniformity in the smoking policy 
among the Bureau's various institutions would be tolerable if inmate 
requests for a transfer based upon a smoking preference would be 
allowed. The commenter further believes elimination of tobacco products 
at an institution will have an adverse economic effect on businesses 
and vendors who serve an institution's commissary as well as funds from 
tobacco sales, which as with other commissary sales, may be used for 
any purpose accruing to the benefit of the inmate body.
    This same commenter, in response to another proposed rule on inmate 
discipline sanctions involving the smoking policy, states that nicotine 
addiction should be recognized as a serious medical condition requiring 
treatment and therapy and that smoking cessation programs and nicotine 
patches should be offered to assist those inmates who wish to quit 
smoking instead of elevating the severity level of the offense.
    Four other commenters objected to the supplemental notice, 
proposing instead a total ban on the possession and use of lighted 
tobacco products for all prisoners, staff, management and visitors. 
Several of these commenters expressed dissatisfaction with the 
enforcement of the current smoking policy. One of these commenters 
alternately proposed separate smoking and non-smoking housing units. 
This commenter recommended limitations on dispensing cigarettes to 
ensure that the cigarette would be consumed under staff supervision at 
the point of purchase.
    Commenters on the original proposed rule expressed a general belief 
that prohibiting indoor 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, expressed concern that the proposed regulations are not 
clear as to whether staff must also adhere to the ban on indoor 
smoking. This commenter included statements from four individuals 
concurring with his views.
    As a practical alternative, three commenters on the original 
proposed rule support non-smoking units instead of a total prohibition 
against indoor smoking. One commenter expressed concern that tobacco 
use not be restricted for religious purposes. The supplemental notice 
was clarified to address this concern. One commenter expressed concern 
over the availability of health services support (including nicotine 
patches and nicorette gum) to those wishing to quit smoking. Four 
commenters objected to eliminating the Warden's authority to designate 
indoor smoking areas. These commenters believed that designated outdoor 
smoking areas would lack protection from adverse weather. They 
requested that the proposed rule specifically assure the availability 
of a protective environment for designated outdoor smoking areas. One 
commenter on the original proposed rule suggested installing smoke 
detectors in all cells. Two commenters on the original proposed rule 
suggested that all tobacco products be banned and no tobacco products 
be sold in federal prisons.
    In response, the Bureau wishes to emphasize its intention to 
protect the health and safety of both staff and inmates. The hazards 
associated with tobacco smoke and second-hand inhalation of smoke by 
nonsmokers is well documented and the known health risks associated 
with smoking support implementation of stricter smoking/no smoking 
rules. The Bureau believes that adopting the provisions in the 
supplemental notice is the most practicable step toward promoting a 
clean air environment and protecting the health and safety of staff and 
inmates. Under the provisions in the supplemental notice, a Warden must 
designate a smoking area for use in instances where smoking is to be 
part of an authorized religious activity. The Warden may designate only 
outdoor smoking areas for general use (that is, for smoking which is 
not part of an authorized religious activity). Designating living units 
within an institution as smoking and non-smoking will not eliminate the 
health risks associated with passive inhalation of second-hand smoke 
indoors. By further allowing the Warden the discretion not to designate 
any smoking areas for general use if the Regional Director concurs, the 
Bureau is essentially adopting the recommendations of several of the 
commenters. If an institution did not have designated smoking areas for 
general use, that institution's commissary would not have corresponding 
tobacco products available for sale. The Bureau does not believe that 
removing tobacco products from the institution's commissary will have a 
significant economic impact as defined by the controlling statutes 
noted below. While there may be some impact on commissary profits, the 
Bureau believes that the health benefits outweigh any potential drop in 
such profits.
    With respect to concerns raised by various commenters over 
enforcement of the smoking regulations, the Bureau is committed to 
investigate reported violations of the smoking policy. To emphasize the 
Bureau's commitment to reducing the health risks associated with 
tobacco smoke, the Bureau, in a separate document (64 FR 9432), 
proposed to elevate violations of the smoking policy from a low 
moderate category act to a moderate category prohibited act. 
Maintaining a smoke-free environment necessarily means that staff and 
visitors will be bound by the restrictions.
    With respect to concerns over the availability of health services 
support for those inmates who wish to stop smoking, the Bureau notes 
that currently institutions are encouraged to offer smoking cessation 
programs. Upon implementation of these revised regulations, smoking 
cessation programs are to be offered at all institutions. Nicotine 
patches are available at the inmate's expense through commissary 
purchase.
    With respect to the concern over the lack of uniformity in the 
application of policy system-wide, the Bureau believes

[[Page 13737]]

that role of the Regional Director will serve to minimize apparent 
disparity. The designation of an inmate to any particular institution 
remains subject to separate procedures designed to assess the inmate's 
designation needs in light of management variables and public safety 
factors.
    With respect to the more technical comments, the Bureau notes that 
the effect on businesses and vendors who serve an institution's 
commissary does not rise to the level of an economically significant 
action. The Bureau does not believe additional smoke detectors are 
necessary as a deterrent to violations of the smoking policy because a 
total ban on indoor smoking simplifies enforcement. The Bureau is in 
compliance with fire safety codes on smoke detectors in its housing 
units. Nor does the Bureau believe it to be practicable to impose 
limitations on the dispensing and consumption of tobacco products as 
recommended by one commenter. Finally, the Bureau declines to 
incorporate the recommendation to require in the regulation some 
provision to accommodate outdoor smokers from adverse weather 
conditions. Security considerations make a blanket assurance of such 
accommodations impracticable. However, each Warden may give 
consideration to this issue based upon the security concerns of the 
institution and local weather conditions.
    Members of the public may submit 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 regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'', section 
1(b), Principles of Regulation. The Director of the Bureau of Prisons 
has determined that this rule is not a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), and accordingly 
this rule has not been reviewed by the Office of Management and Budget.

Executive Order 13132

    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 13132, 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.

List of Subjects in 28 CFR Part 551

    Prisoner.

Harley G. Lappin,
Director, Bureau of Prisons.

0
Under the rulemaking authority vested in the Attorney General in 5 
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
amend 28 CFR part 551 as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 551--MISCELLANEOUS

0
1. Revise the authority citation for 28 CFR 551 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); Attorney General's May 1, 1995 
Guidelines for Victim and Witness Assistance.

0
2. Revise subpart N 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 advance towards becoming a clean air environment and to protect 
the health and safety of staff and inmates, the Bureau of Prisons will 
restrict areas and circumstances where smoking is permitted within its 
institutions and offices.


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 part of an authorized inmate religious activity.
    (b)(1) The Warden may designate only outdoor smoking areas for 
general inmate 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. 04-6495 Filed 3-23-04; 8:45 am]
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