Smoking/No Smoking Areas

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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