[Federal Register Volume 71, Number 92 (Friday, May 12, 2006)]
[Proposed Rules]
[Pages 27652-27653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7237]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 551

[BOP Docket No. 1140-P]
RIN 1120-AB42


Smoking/No Smoking Areas

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
revise regulations pertaining to smoking/no smoking for inmates in 
Bureau facilities. The revised regulations indicate that smoking is 
generally prohibited in and on the grounds of Bureau institutions and 
offices, with the following two exceptions: Smoking is permitted as 
part of an authorized inmate religious activity; and, for Bureau staff 
and official visitors, smoking is permitted only in smoking areas 
designated by the Warden. This rule also clarifies that possession of 
smoking apparatus and tobacco in any form is prohibited for inmates, 
unless as part of an authorized inmate religious activity. Smoking is 
defined as inhaling the smoke of any substance through the use of 
smoking apparatus including, but not limited to, cigars, cigarettes, or 
pipes. We intend this amendment to promote a clean air environment and 
to protect the health and safety of staff and inmates.

DATES: Comments due by July 11, 2006.

ADDRESSES: Our e-mail address is [email protected]. Comments should be 
submitted to the Rules Unit, Office of General Counsel, Bureau of 
Prisons, 320 First Street, NW., Washington, DC 20534. You may view an 
electronic version of this rule at www.regulations.gov. You may also 
comment via the Internet to BOP at [email protected] or by using the 
http://www.regulations.gov comment form for this regulation. When 
submitting comments electronically you must include the BOP Docket No. 
in the subject box.

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

SUPPLEMENTARY INFORMATION: In this document, the Bureau proposes to 
revise regulations pertaining to smoking/no smoking for inmates in 
Bureau facilities. The revised regulations indicate that smoking is 
generally prohibited in and on the grounds of Bureau institutions and 
offices, with the following two exceptions: Smoking is permitted as 
part of an authorized inmate religious activity; and, for Bureau staff 
and official visitors, smoking is permitted only in smoking areas 
designated by the Warden. This rule also clarifies that possession of 
smoking apparatus and tobacco in any form is prohibited for inmates, 
unless as part of an authorized inmate religious activity. Smoking is 
defined as inhaling the smoke of any substance through the use of 
smoking apparatus including, but not limited to, cigars, cigarettes, or 
pipes. We intend this amendment to promote a clean air environment and 
to protect the health and safety of staff and inmates.
    A final rule was published on this subject on March 24, 2004 (69 FR 
13735), after publication of a proposed rule on November 25, 1998 (63 
FR 65502), and a modification on May 6, 1999 (64 FR 24468). The 2004 
final rule prohibited indoor smoking areas for general inmate use, but 
allowed Wardens to designate outdoor smoking areas for general inmate 
use.
    Several comments to the proposed rule and modification objected to 
allowing even outdoor smoking areas for inmates. These commenters 
instead proposed a total ban on the possession and use of lighted 
tobacco products for all prisoners. The commenters expressed 
dissatisfaction with the enforcement of the then-current smoking 
policy. Also, commenters expressed a general belief that prohibiting 
indoor smoking within Bureau facilities would have little impact on 
reducing smoking and improving the air quality. Two commenters on the 
original proposed rule also suggested that all tobacco products be 
banned and no tobacco products be sold in federal prisons.
    As stated in the 2004 final rule document, 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.
    Also, when the 2004 regulations were implemented, Bureau policy 
mandated smoking cessation programs for inmates at all institutions to 
help ease inmate concerns about the possibility of no smoking areas. 
Nicotine patches are now available at the inmate's expense through 
commissary purchase.
    In consideration of the concerns raised by these commenters and to 
further strengthen the Bureau's intention to protect the health and 
safety of both staff and inmates, we propose to revise the Bureau's 
smoking regulations to indicate that smoking is generally prohibited in 
and on the grounds of Bureau institutions and offices, with the 
following two exceptions: Smoking is permitted as part of an authorized 
inmate religious activity; and, for Bureau staff and official visitors, 
smoking is permitted only in smoking areas designated by the Warden.
    Also in consideration of the commenters' concerns, this rule will 
prohibit inmate possession of smoking apparatus and tobacco in any 
form, unless as part of an authorized inmate religious activity.
    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 prohibiting smoking, 
including inmate possession of smoking apparatus and tobacco in any 
form, with only limited exceptions for authorized inmate religious 
activity and for Bureau staff and official visitors, designated smoking 
areas is the most practicable step toward promoting a clean air 
environment and protecting the health and safety of staff and inmates.

[[Page 27653]]

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

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons in 28 CFR 0.96, we propose to amend 28 CFR part 551 as set 
forth below.

Subchapter C--Institutional Management

PART 551--MISCELLANEOUS

    1. The authority citation for 28 CFR 551 continues 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.

    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 Smoking Generally Prohibited.
551.163 Possession of Smoking Apparatus and Tobacco Prohibited.


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 the purposes of this subpart, smoking is defined as inhaling 
the smoke of any substance through the use of smoking apparatus 
including, but not limited to, cigars, cigarettes, or pipes.


Sec.  551.162  Smoking Generally Prohibited.

    Smoking is generally prohibited in and on the grounds of Bureau 
institutions and offices, with the following two exceptions:
    (a) Smoking is permitted as part of an authorized inmate religious 
activity; and
    (b) For Bureau staff and official visitors, smoking is permitted 
only in smoking areas designated by the Warden.


Sec.  551.163  Possession of Smoking Apparatus and Tobacco Prohibited.

    Possession of smoking apparatus and tobacco in any form is 
prohibited for inmates, unless as part of an authorized inmate 
religious activity.

[FR Doc. E6-7237 Filed 5-11-06; 8:45 am]
BILLING CODE 4410-05-P