[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
_______________________________________________________________________
Federal Prison Industries, Inc.
Bureau of Prisons
_______________________________________________________________________
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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