[Federal Register Volume 79, Number 235 (Monday, December 8, 2014)]
[Rules and Regulations]
[Pages 72545-72548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28620]



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  Federal Register / Vol. 79, No. 235 / Monday, December 8, 2014 / 
Rules and Regulations  

[[Page 72545]]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 551

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


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) finalizes 
without change a proposed rule that was published on this subject on 
May 12, 2006, to revise regulations pertaining to smoking/no smoking in 
Bureau facilities. The revised regulations generally prohibit smoking 
in and on the grounds of Bureau institutions and offices, except as 
part of an authorized inmate religious activity; and, for Bureau staff 
and official visitors, only in smoking areas designated by the Warden. 
Possession of smoking apparatus and tobacco in any form is prohibited 
for inmates under this rule, unless as part of an authorized inmate 
religious activity. We intend this amendment to promote a clean air 
environment and to protect the health and safety of staff and inmates.

DATES: This rule is effective January 7, 2015.

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

SUPPLEMENTARY INFORMATION: In this document, the Bureau revises 
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 proposed rule was published on this subject on May 12, 2006 (71 
FR 27652). The Bureau received a total of 66 comments. Approximately 57 
of the comments were copies of the same six form letters. The remaining 
nine comments addressed issues raised in the six form letters. Because 
all the comments related to the same set of issues, we address each 
issue raised by the commenters below.
    Comment: The rule is contrary to 5 U.S.C. 7301, E.O. 13058 (banning 
smoking of tobacco products in all federal buildings except--see sec. 
2(b)), which says the order does not extend to residential 
accommodation for persons involuntarily residing in a federal 
government building.
    Bureau's response: 5 U.S.C. 7301 states only that ``[t]he President 
may prescribe regulations for the conduct of employees in the executive 
branch.'' Executive Order 13058, Protecting Federal Employees and the 
Public From Exposure to Tobacco Smoke in the Federal Workplace, issued 
on August 9, 1997, states that the smoking of tobacco products is thus 
prohibited in all interior space owned, rented, or leased by the 
executive branch of the Federal Government, and in any outdoor areas 
under executive branch control in front of air intake ducts. The 
Executive Order carves out an exception to its smoking prohibition for 
any residential accommodation for persons voluntarily or involuntarily 
residing, on a temporary or long-term basis, in a building owned, 
leased, or rented by the Federal Government.
    Although the Executive Order prohibiting smoking in federal 
buildings does not extend to buildings such as Bureau facilities, it 
does not affirmatively preclude the Bureau from exercising its 
authority to regulate in this manner. The Bureau therefore has 
determined that this regulation is necessary to conform with the 
intention of the Executive Order to protect Federal Government 
employees and members of the public from exposure to tobacco smoke in 
the Federal workplace.
    The dangers of secondhand smoke exposure are well-documented. An 
August 2005 report from the American Lung Association states that 
secondhand smoke lingers in the air hours after cigarettes have been 
extinguished and can cause or exacerbate a wide range of adverse health 
effects, including cancer, respiratory infections, and asthma. 
Secondhand smoke has been classified by the Environmental Protection 
Agency (EPA) as a known cause of cancer in humans (Group A carcinogen). 
Secondhand smoke exposure causes approximately 3,400 lung cancer deaths 
and 22,700-69,600 heart disease deaths in adult nonsmokers in the 
United States each year. Nonsmokers exposed to environmental smoke were 
25 percent more likely to have coronary heart diseases compared to 
nonsmokers not exposed to smoke.
    Further, a June 2006 report from the Surgeon General concluded that 
scientific evidence indicates that there is no risk-free level of 
exposure to second hand smoke. Even short exposures to second hand 
smoke can cause blood platelets to become stickier, damage the lining 
of blood vessels, decrease coronary flow velocity reserves, and reduce 
heart rate variability, potentially increasing the risk of heart 
attack.
    Comment: The Bureau increased prices on other commissary items when 
it removed tobacco products from the commissary.
    Bureau's response: There has been no policy change related to 
pricing of institution commissary items for several years. Prices of 
items in the commissary fluctuate on a regular basis due to changes in 
the cost to the Bureau of the products themselves. Any increase in 
pricing that may have been observed when the Bureau removed tobacco 
products from the commissaries would be due to such regular 
fluctuations. There was no change in the Bureau's pricing policy 
related to the removal of tobacco from the commissaries.

[[Page 72546]]

    Comment: Banning tobacco products will decrease the safety of 
staff. The price of contraband tobacco will increase, inciting inmate 
security issues.
    Bureau's response: Previous regulations on inmate smoking allowed 
Wardens to prohibit smoking at their institutions with the concurrence 
of the Regional Director where the institution is located. At those 
institutions where the Warden has prohibited smoking, there has been no 
increase in assaults on staff.
    However, Bureau regulations on inmate discipline were amended, 
through a separate rulemaking document, to increase the severity of 
sanctions that may be imposed for violation of the prohibited act codes 
(75 FR 76263, Dec. 8, 2010). The code prohibiting possession of non-
hazardous contraband now includes smoking apparatus and tobacco in any 
form where prohibited. The specifically worded code, combined with more 
severe sanctions for violations, will deter possession of tobacco 
products in Bureau facilities.
    Further, the Bureau implemented measures to increase searches of 
employees, to further ensure that Bureau staff are not a source of 
contraband on Bureau grounds. In a rule published on June 6, 2007 (72 
FR 31178), the Bureau revised its regulations on searching non-inmates 
(including staff) to include random searches and searches using 
electronic devices other than metal detectors. This enhanced the 
Bureau's ability to detect and prevent contraband, thereby increasing 
the safety of staff and inmates in Bureau facilities.
    Comment: The prohibition on smoking and possession of tobacco and 
smoking-related apparatus should also apply to staff.
    Bureau's response: As a practical matter, smoking is a lawful 
activity for Bureau employees. In the interests of balancing staff 
morale with institution safety and security, the Director has decided 
to allow for the possibility of limited opportunities for staff 
smoking.
    Under current policy, Warden-designated staff smoking areas must be 
outdoors, to minimize the impact of second-hand smoke inhalation. Also, 
current Bureau policy requires that Bureau facilities maintain staff 
smoking cessation programs, which are intended to further minimize the 
likelihood that tobacco or smoking apparatus will be introduced upon 
institution grounds.
    However, to ensure that persons visiting inmates are prohibited 
from smoking in and on the grounds of Bureau institutions and offices, 
we are altering the rule to state that smoking is permitted, in smoking 
areas designated by the Warden, only for Bureau staff and official 
visitors.
    The Bureau intends for Sec.  551.162 (b) of the rule to allow 
smoking for non-inmates only in areas designated by the Warden. 
Currently, Warden-designated staff smoking areas are carefully 
determined based on the unique circumstances at each Bureau facility.
    Comment: The Bureau violated the Administrative Procedure Act by 
discontinuing the sale of tobacco products.
    Bureau's response: By discontinuing the sale of tobacco products, 
the Bureau did not violate any requirement set by the Administrative 
Procedure Act (5 U.S.C. 551, et al.). The removal of tobacco products 
from institution commissaries was not a prohibition of inmate 
possession of tobacco, which Wardens were permitted to authorize under 
the previous regulations. The listing of products available for sale in 
institution commissaries is not appropriate subject matter for federal 
regulations because particular brands, items, and cost will vary 
frequently depending on market fluctuations and what particular 
products are available or needed in different locales or in 
institutions with different security levels and needs.
    Comment: The rule prohibiting possession of tobacco in any form is 
too broad in that it applies to snuff and/or chewing tobacco, which 
produce no smoke and do not implicate air quality--the rule should only 
apply to ``lighted'' tobacco products.
    Bureau's response: Snuff and chewing tobacco are also harmful to 
health in the same way that ``lighted'' tobacco products are. A 
February 13, 2006, report by the American Cancer Society (http://www.cancer.org/docroot/PED/content/PED_10_13X_Quitting_Smokeless_Tobacco.asp?#why_quit) states that 
smokeless tobacco can cause serious health problems, including nicotine 
addiction, cancer of the mouth and pharynx, leukoplakia, gum recession, 
bone loss around the teeth, and abrasion and staining of teeth. The 
Bureau is therefore committed to reducing these health risks in inmates 
by prohibiting use and possession of tobacco in any form.
    Further, inmates may attempt to smoke snuff and chewing tobacco if 
such products are permitted in Bureau facilities and smoking tobacco is 
not permitted. To prevent this disparity, the Bureau now prohibits all 
forms of tobacco for inmates in Bureau facilities.
    Comment: The regulation leads to forced medical treatment that is 
not properly implemented by qualified medical staff, in violation of 
the Constitution.
    Bureau's response: The inmate Smoking Cessation Program is not 
``forced'' treatment. Participation in the program is voluntary--
inmates decide of their own volition whether to participate in the 
program. Under current Bureau policy, Wardens are required to establish 
an institution Smoking Cessation Program consistent with local 
resources. A Smoking Cessation Program must, at a minimum, address 
nutrition, physical activity (exercise), stress management, and 
nicotine replacement therapy (NRT). Use of the NRT is optional, just as 
program participation is voluntary.
    Further, the programs are run by qualified medical staff at each 
institution. Either Bureau health services or psychology services staff 
coordinate Smoking Cessation Programs at the institution level, and are 
trained specifically to do so.
    Comment: The smoking cessation program is not available to indigent 
inmates.
    Bureau's response: The Smoking Cessation Program is available to 
indigent inmates. Inmates may participate on a voluntary basis in all 
aspects of the program. There is no charge for any aspect of the 
program except for the nicotine replacement therapy, which is optional. 
The NRT is not considered medically necessary by health services staff, 
and therefore will not be provided to inmates who cannot pay for it. 
However, inmates without funds may participate in all other aspects of 
the program.
    Comment: This regulation is an additional punishment on inmates 
suffering from nicotine addiction.
    Bureau's response: This regulation is no different from current 
policies and regulations in place that prohibit inmate possession of 
other contraband that is harmful to health, such as illegal drugs. The 
Bureau offers drug abuse treatment programs for inmates who suffer from 
drug addiction, and offers smoking cessation programs for inmates 
suffering from nicotine addiction. Prohibiting the possession of 
tobacco and smoking apparatus does not constitute punishment.
    Comment: The regulation is subject to review under SBREFA because 
it creates a black market that exceeds the threshold of $100,000,000. 
It blocks access to a long-standing market segment for legitimate 
businesses. The inmate trust fund is also impacted.
    Bureau's response: Title 5 of the United States Code, section 
804(1), requires the Office of Management and Budget (OMB) to review 
any federal

[[Page 72547]]

regulation which ``the Administrator of the Office of Information and 
Regulatory Affairs of the Office of Management and Budget finds has 
resulted in or is likely to result in . . . (A) an annual effect on the 
economy of $100,000,000 or more.'' Notwithstanding the fact that 
Congress did not intend ``economy'' to encompass the ``black market'' 
or other illegal business ventures, this regulation was, in fact, 
submitted to OMB for review. OMB found this regulation to not be 
significant under 5 U.S.C. 804(1), and therefore decided that it did 
not warrant further review. Therefore, even if the regulation has an 
arguable economic impact, the Bureau has complied with SBREFA by 
submitting it to the Office of Management and Budget for review and 
approval.
    Comment: This regulation creates a massive enforcement burden for 
Bureau staff.
    Bureau's response: Bureau staff are trained to intercept contraband 
in all forms. Intercepting tobacco and smoking apparatus imposes no 
additional burden on Bureau staff, but may be done while staff perform 
routine searches of non-inmates and their belongings, and routine 
searches of inmates, their living and working areas, and belongings.
    Also, the previous regulation allowed any Warden to decide, with 
the Regional Director's concurrence, not to designate smoking areas for 
general use. Several Wardens have already made this choice for their 
facilities, and the Bureau has not observed any further enforcement 
burden on staff with relation to this change.
    Comment: The regulation discriminates against the mentally ill, who 
may find it difficult/impossible to quit smoking.
    Bureau's response: A 2002 Psychiatric Services journal article 
entitled, ``Smoking Cessation Approaches for Persons With Mental 
Illness or Addictive Disorders,'' a summary of 24 empirical studies 
with results from 1991-2001, found that the recorded ``quit rates'' of 
patients with psychiatric disorders were similar to those of the 
general population. It was no more difficult for the mentally ill to 
quit smoking than it was for someone with no mental disorder.
    Also, mentally ill inmates are typically housed in no-smoking units 
already, and are permitted only limited time, under supervision, to 
visit any currently-existing authorized outdoor smoking areas. Such 
inmates already have decreased their smoking activity by virtue of 
limited access to smoking areas. This regulation does not, therefore, 
apply any differently to a mentally ill inmate than to any other 
inmate.
    Comment: The regulation creates a substantial burden as defined in 
42 U.S.C. 2000cc on the religious exercise of Native Americans in that 
it is not the least restrictive means of furthering the compelling 
government interest.
    Bureau's response: 42 U.S.C. 2000cc relates to government 
imposition of a state, not Federal, ``land use regulation in a manner 
that imposes a substantial burden on the religious exercise of a 
person'' without demonstrating that it is the ``least restrictive means 
of furthering [a] compelling governmental interest.'' With regard to 
state governments, courts have acknowledged the application of this 
statute in a prison setting. See Ephraim v. Angelone, 313 F.Supp.2d 569 
(E.D.Va. 2003) (State prison's refusal to provide inmate with 
vegetarian religious diet was not required to be analyzed under strict 
scrutiny test set forth in Religious Land Use and Institutionalized 
Persons Act (RLUIPA) because there was no showing prison was receiving 
federal funding, or that burden imposed on inmate affected interstate 
commerce, as required for Act to be applicable); Borzych v. Frank, 439 
F.3d 388, (C.A.7 Wis. 2006) (State prison procedure, prohibiting 
activities and literature advocating racial or ethnic supremacy or 
purity, was not overbroad and therefore not substantial in relation to 
its proper application under RLUIPA).
    The Bureau's action in this document is a Federal regulation, not a 
state regulation, and therefore does not violate RLUIPA. Further, the 
regulation permits smoking as part of an authorized inmate religious 
activity, and therefore does not impact inmate religious activity.
    The statute governing Federal action in this context is the 
Religious Freedom Restoration Act (42 U.S.C. 2000bb, et seq.) (RFRA). 
Although the regulation does not burden inmate religious activity, we 
note that preserving inmate health has been found to constitute a 
``compelling penological interest'' under both RLUIPA and RFRA that 
would override a burden on inmate religious activity, if such a burden 
existed. Ragland v. Angelone, 420 F.Supp.2d 507 (W.D.Va. 2006) 
(Virginia's inmate grooming policy did not violate RLUIPA; policy 
furthered compelling penological interests in security, staff safety, 
inmate identification, and inmate health.); See also Weir v. Nix, C.A.8 
(1997), 114 F.3d 817 (Prison's prohibition of personal property in 
prison yard did not place ``substantial burden'' on inmate's rights 
under RFRA, he was free to use his Bible in his cell.); Davie v. 
Wingard, (1997) 958 F.Supp. 1244, 166 A.L.R. Fed. 709 (Prison 
officials' safety, security, and discipline concerns presented 
``compelling government interest'' justifying hair length regulations 
challenged under RFRA.).
    For the aforementioned reasons, the Bureau finalizes this rule 
without change.

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.

[[Page 72548]]

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. Inmate smoking has been 
gradually decreasing in Bureau facilities since publication of the 
final rule in 2004 (see 69 FR 13737, Mar. 24, 2004), which restricted 
smoking to authorized outdoor areas except for authorized religious 
activities, and allowed Wardens to choose, with Regional Director 
concurrence, not to designate smoking areas at all for general inmate 
use (except for authorized religious activity). The determination to 
remove tobacco products from sale in the inmate commissaries likewise 
occurred several years ago when it became apparent that inmate smoking 
was decreasing. Therefore, the economic impact is expected to be 
minimal.

List of Subjects in 28 CFR Part 551

    Prisoners.

Charles E. Samuels, Jr.,
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 amend 28 CFR part 551 as set forth below:

Subchapter C--Institutional Management

PART 551--MISCELLANEOUS

0
1. The authority citation for 28 CFR part 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.


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 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. 2014-28620 Filed 12-5-14; 8:45 am]
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