36710 Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices

NORTH CAROLINA

Cabarrus County

Boger—Hartsell Farm, Jct. of US–801 and

NC1148, Concord vicinity, 98000890

PENNSYLVANIA

Fayette County

Gallatin School, 165 Gallatin Ave.,

Uniontown, 98000902

Newmyer, Peter and Jonathan, Farm, 3165

Richey Rd., Bullskin Township, 98000901

Mifflin County

Embassy Theatre, 6 S. Main St., Lewistown,

98000899

Montgomery County

Oak Park Historic District, Roughly along

Oak Park Rd., Park Ave., Oak Blvd., Forest

Ave., and Squirrel Ln., Hatfiels Township,

98000897

Philadelphia County

Fair Hill Burial Ground, Roughly along

Germantown, and Indiana Aves., Ninth,

and Cambria Sts., Philadelphia, 98000900

Pike County

Milford Historic District, Roughly along

Broad, Harford, Ann, Catharine, High, and

Fourth Sts., Milford, 98000898

Westmoreland County

Mount Pleasant Historic District, Roughly

along Main, S. Church, Eagle, Walnut and

College Sts., Mount Pleasant, 98000903

New Kensington Downtown Historic District

(Aluminum Industry Resources of

Southwestern Pennslyvania), Roughly

bounded by 8th Ave., 3rd St., 11th Ave.,

and Barnes Ave., New Kensington,

98000904

UTAH

Sanpete County

Metcalf, James and Caroline M., House, 290

E 500 S, Gunnison, 98000905

VERMONT

Orange County

Fairlee Railroad Depot, Between US 5 and

Boston and Maine Railroad Tracks, Failee,

98000906

WYOMING

Albany County

North Albany Clubhouse, Address Restricted,

Garrett Route vicinity, 98000908

Park County

Ralston Community Clubhouse, 969 Carbon

St., Ralston, 98000907

Sweetwater County

Taliaferro House, 106 Cedar St., Rock

Springs, 98000909

A Request for Removal has been

received for the following resources:

OREGON

Lincoln County

Drift Creek Covered Bridge (Oregon Covered

Bridges TR), Drift Creek Rd., over Drift

Creek, Lincoln City vicinity, 79002106

Yamhill County

Dayton Opera House (Dayton MPS), 318

Ferry St., Dayton, 87000342

Dayton Auto and Transfer Co. Building

(Dayton MPS), 411 Ferry St., Dayton,

87000337

[FR Doc. 98–17861 Filed 7–6–98; 8:45 am]

BILLING CODE 4310–70–P

DEPARTMENT OF JUSTICE

Office of Justice Programs

Bureau of Justice Assistance

[OJP(BJA)–1150]

Prison Industry Enhancement

Certification Program Guideline

AGENCY: Office of Justice Programs,

Bureau of Justice Assistance (BJA),

Justice.

ACTION: Proposed Guideline for public

comment.

SUMMARY: The Office of Justice

Programs, Bureau of Justice Assistance

(BJA), is issuing this proposed revision

to the Prison Industry Enhancement

Certification Program (PIECP)

Guideline, 50 FR 12661–64 (March 29,

1985). Under Title 18 U.S.C. 1761(c),

BJA certification excepts participating

agencies from certain Federal restraints

placed on the marketability of prisonmade goods by permitting the transport

of such goods in interstate commerce

and the sale of such goods to the Federal

government. This guideline reflects

efforts by the Bureau of Justice

Assistance to enhance guidance to the

field through amendments proposed to

the initial guideline published in March

1985. Since that time, there have been

amendments to the statutory authority

governing the administration of the

PIECP and operations issues emerging at

cost accounting centers. As a result, BJA

seeks to clarify for the field the

applicable statutes and guidelines. This

revision provides a more comprehensive

and responsive document to promote

compliance with and direction for

PIECP.

The publication of this proposed

guideline is considered to be a Federal

action that will not significantly affect

the quality of the human environment.

Therefore, the preparation of an

environmental impact statement is not

necessary.

DATES: All comments received on or

before September 8, 1998 will be

considered in drafting the Final

Guideline.

ADDRESSES: Bureau of Justice

Assistance, Office of Justice Programs,

U.S. Department of Justice, 810 Seventh

Street, N.W., Washington, D.C. 20531.

FOR FURTHER INFORMATION CONTACT: J.A.

Marshall, Acting Chief, Corrections

Branch, Bureau of Justice Assistance

(202) 616–3215.

SUPPLEMENTARY INFORMATION:

Scope of Program Announcement

I. Introduction: Program Purposes and

Objectives

II. Background of the Prison Industry

Enhancement Certification Program (PIECP)

a. The Legislative History

1. Unregulated Prison Labor

2. Prisoner Idleness and Prisoners’ Need

for Job Skills Training

b. The PIECP Program

1. Current State of the Program

2. Future Challenges

c. Request for Comments

III. Program Guidance

a. PIECP Purposes

b. Definitions

c. BJA’s Initial Considerations for

Determining Propriety of Work Pilot

Project Certification

1. BJA’s Exercise of Discretionary

Authority to Define and Certify 50 Work

Pilot Projects

2. Threshold Inquiry for Determining

Applicability of PIECP Exception Status

d. Mandatory Program Criteria for PIECP

Participation

1. Eligibility

2. Prevailing Wages

3. Non-Inmate Worker Displacement

4. Benefits

5. Deductions

6. Voluntary PIECP Inmate Worker

Participation

7. Consultation with Organized Labor

8. Consultation with Local Private Industry

9. Compliance with NEPA

IV. PIECP Administration

a. Certificate Holders

1. Project Structure

2. Application Content

3. BJA Review

4. Standard or Provisional Certification

5. Certificate Holder Designation Authority

6. Certificate Holder Monitoring

Responsibilities

b. Cost Accounting Centers’ PIECP Exception

Status

c. Compliance Reviews

1. Performance Reports

2. On-Site Monitoring Reviews

d. BJA’s PIECP Administration

e. Exception Status Suspension/Termination

1. Notice of Possible Compliance Violation

2. Voluntary Compliance Agreements

3. Failure to Achieve Compliance and

Effect of Non-Compliance

4. PIECP Exception Status Suspension and

Termination

I. Introduction: Program Purposes and

Objectives

The Prison Industry Enhancement

Certification Program (PIECP), codified

at 18 U.S.C. 1761(c), was first
Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices 36711

authorized by the Justice System

Improvement Act of 1979, Pub. L. 96–

157, 93 Stat. 1215. The PIECP was

expanded from 7 to 20 pilot projects

under the Justice Assistance Act of

1984, Pub. L. 98–473 § 609k(a)(1), 98

Stat. 2077, 2102. In 1990, The Crime

Control Act of 1990, Pub.L. 101–647

§ 2906, 104 Stat. 4789, 4914, raised to 50

the number of PIECP projects that may

be excepted by the Bureau of Justice

Assistance (BJA) from certain Federal

restrictions on the marketability of

prison-made goods, including the

Ashurst-Sumners Act (18 U.S.C.

1761(a)) and the Walsh-Healey Act (41

U.S.C. 35).

PIECP has grown since its inception

in 1979, with 38 prison work pilot

projects now certified throughout the

country. Prison administrators find

PIECP participation an effective way to

address idleness among ever-increasing

prison populations and as a costefficient method for providing inmates

with marketable job skills. Taxpayers

benefit because PIECP inmate wage

deductions result in reductions in

incarceration costs. Inmate wages

benefit society, generally, in that

deduction amounts are authorized to

address victim compensation, inmate

family support needs, and taxes. Lastly,

PIECP industries obtain broad market

access for their products because they

are excepted from the Ashurst-Sumners

Act prohibition against the interstate

transport of prison-made goods and

from the Walsh-Healey Act prohibition

against certain contract sales of prisonmade goods to the Federal government.

BJA issued a Guideline to implement

this program (50 FR 12661–64) on

March 29, 1985 and now publishes

revisions in this Proposed Guideline to

provide programmatic clarification

based on experience gained over the

past 13 years. The legislative

underpinnings of relevant laws are

examined to ensure that program

administration practices are consistent

with Congressional intent and that the

scope of their applicability is clearly

defined. Refined administrative

practices are set forth for comment.

II. Background of the Prison Industry

Enhancement Certification Program

(PIECP)

a. Legislative History

1. Unregulated Prison Labor

The 19th Century evolution of

industrial capitalism and private sector

use of prisoner labor spawned a number

of conditions that adversely affected

several major segments of society. By

the turn of the 20th Century, these

segments joined in an organized appeal

to Congress and state legislatures

nationwide. They collectively asserted

that the production and distribution of

unregulated prisoner-made goods in

interstate commerce needed to be

eliminated or, at a minimum,

controlled.

Human rights activists turned the

public’s attention to poor prison work

conditions and inmate exploitation.

Organized labor argued that the demand

for prison-made products, anywhere,

necessarily displaced a possible demand

for the product of free labor. Free

enterprise manufacturers were disturbed

because manufacturers of prison-made

goods did not bear the burden of

overhead costs borne by private

industry competitors, such goods were

being sold at below market prices. The

viability of private industry competition

was thereby undercut. In December

1924, Herbert Hoover, as Secretary of

Commerce, held a conference on the

subject of the ‘‘ruinous and unfair

competition between prison-made

products and free industry and labor.’’

70 Cong. Rec. S656 (1928).

Then-Secretary Hoover authorized an

advisory committee to study the

problem. This committee issued a report

in 1928 wherein Arthur Davenport,

Chairman of the Advisory Committee on

Prison Industries, submitted the

following report conclusions to

Congress:

(1) Certain major factors in the normal cost

of production which must be met by all

manufacturers are entirely absent in the case

of prison industries. If anything approaching

normal efficiencies of operation can be

attained with the use of prison facilities and

labor, the total costs of production are

obviously below those of the manufacturer

who must meet large overhead expenses as

well as employ free labor.

(2) It is the universal belief that prisoners

should be usefully occupied whether as a

part of their punishment or as a means of

rehabilitation by teaching them the habits of

industry. To this end nearly every State

* * * provid[es] productive work for their

prisoners * * *

(3) The volume of goods produced by

prison labor is already very large in some

lines, but as more prisoners are put to work,

and the industries become more efficient, the

output of our prisons will be greatly

increased.

(4) The effect of placing on the open

market a volume of goods which have been

produced below normal costs, is to lower

prices and disorganize the market * * *. The

increase in prison production which is

predicted will exaggerate this evil and make

it difficult if not impossible for

manufacturers employing free labor to exist

in trade where the prison output becomes

heavy.

(5) The solution of this problem, if prison

production is to continue * * *. would seem

to be the elimination, in one way or another,

of the direct price competition of the prison

products with so called ‘‘free products’’

* * *. 70 Cong. Rec. S656 (1928).

In closing, Chairman Davenport urged

that solutions be found, ‘‘[o]therwise

either prison industries must cease and

prisoners kept in idleness or the

manufacture of products competing

with prison output will become

impossible. Either of these

developments would be disastrous

* * *.’’ See S. Rep. No. 344, 70th Cong.,

1st Sess., re-printed, Cong. Rec. S656

(Dec.15, 1928), ‘‘Statement of Prison

Labor Problems as Shown by Report of

Senate Committee.’’

Even if a state prohibited its own

correctional institutions from producing

and marketing prison-made goods, that

same state had no jurisdiction to control

such goods produced in other states,

transported in interstate commerce and

sold within its boundaries. As an initial

solution to this problem, Congress

enacted the Hawes-Cooper Act in 1929,

Pub. L. 70–669, 45 Stat. 1084, recodified by Pub. L. 95–473, 92 Stat.

1449 (1978) [formerly codified at 49

U.S.C. 11507, omitted in the revision of

Title 49 by Pub. L. 104–88, Title I

§ 102(a), 109 Stat. 804 (effective January

1, 1996); See S. Rep. No. 104–176]. This

law divested prison-made products of

their interstate character upon their

arrival in the state of their destination

and permitted the laws of that state to

become operative with respect to the

sale and distribution of such products.

It was described, at the time of

enactment, as an enabling act because it

did not prohibit the transportation of

convict-made goods or force the

enactment of state legislation.

In 1935, Congress enacted the

Ashurst-Sumners Act, Pub. L. 74–215,

49 Stat. 494 (1935), which authorized

Federal criminal prosecutions of

violations of state laws enacted

pursuant to the Hawes-Cooper Act.

Subsequent amendments to this law,

including Pub. L. 76–851, 54 Stat. 1134

(1940), strengthened Federal

enforcement authority by making any

transport of prison-made goods in

interstate commerce a Federal criminal

offense. As amended, 18 U.S.C. 1761(a)

now provides:

Whoever knowingly transports in interstate

commerce or from any foreign country into

the United States any goods, wares, or

merchandise manufactured, produced, or

mined, wholly or in part by convicts or

prisoners, except convicts or prisoners on

parole, supervised release, or probation, or in

any penal or reformatory institution, shall be

fined [under this title] or imprisoned not

more than two years, or both. [herein referred

to as the Ashurst-Sumners Act].
36712 Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices

Certain prison-made products were

excepted by statute from the AshurstSumners Act prohibition, including

‘‘agricultural commodities or parts for

the repair of farm machinery’’ as well as

‘‘commodities manufactured in a

Federal, District of Columbia or State

institution for use by the Federal

Government, or by the District of

Columbia, or by any State or Political

subdivision of a State or not-for-profit

organizations.’’ Title 18 U.S.C. 1761(b).

The Walsh-Healey Act, 49 Stat. 2036

(1936), as amended in 1979 by Pub. L.

90–351, § 827(b) and codified at 41

U.S.C. 35, also controls the production

of prison-made goods. This statute

prohibits the use of prison labor to

fulfill general government contracts

which exceed $10,000. BJA certification

pursuant to § 1761(c) excepts prisonmade goods produced by PIECP work

pilot projects from the Walsh-Healey

Act contracting restrictions, as well as

the Ashurst-Sumners Act interstate

transportation restrictions.

2. Prisoner Idleness and Prisoners’ Need

for Job Skills Training

The PIECP exception to the AshurstSumners and the Walsh-Healey Act

restrictions was introduced in the

Senate in 1979 after the 1978 Pontiac,

Illinois prison riot. In the wake of that

uprising, Senator Charles Percy (R–IL)

stated:

[L]ast summer in Pontiac, Illinois, our

worst fears about the conditions in the

Nation’s prisons erupted into a nightmarish

reality. The Pontiac prison riot of 1978 ended

with three guards dead, three others seriously

wounded, and $4 million in property damage

* * *

The shopping list of problems and

deficiencies in our prison system is long and

well known. Overcrowding, old and obsolete

facilities, lack of training or educational

programs, crime within prison walls,

frustration on the part of guards and inmates

are all a part of the dreary picture * * *.

Recidivism is now a substantial element in

our overall crime rate, and prisons are often

accurately characterized as a ‘‘school for

crime,’’ rather than a deterrent to crime

* * *. 125 Cong. Rec. S11834 (1979).

These concerns caused Congress to

take measures to encourage prison

industries, provided that they not

engage in unfair competition with

private sector businesses and labor.

Senator Percy’s bill, now referred to as

the Prison Industries Enhancement Act,

Section 827 of the Justice System

Improvement Act of 1979, Pub. L. 96–

157, § 827(a), 93 Stat. 1215, was enacted

on December 27, 1979. As amended, it

now offers 50 Federally certified

projects an opportunity to participate in

the interstate market, provided certain

safeguards to free-world labor and

industry, and to prisoner-workers

themselves, are met. See The Crime

Control Act of 1990, Pub. L. 101–647,

§ 2906, 104 Stat. at 4914.

In describing the purpose of his

introduced legislation, Senator Percy

explained (125 Cong. Rec. S11834

(1979)):

My amendment would do two basic things:

First, it would authorize the [BJA] to

encourage development of pilot

demonstration projects for prison industry at

the State level, involving private sector

industry * * *. Under this approach, prison

programs benefit from the private business,

develop access to new markets, and attract

needed capital. The goal of these pilot

projects would be to create as realistic a

working environment as possible within the

prison walls, while enabling an inmate to

become more self-sufficient to the benefit of

himself, the prison system, and the taxpayer.

Secondly, my amendment creates a partial

exemption to two Federal laws which

severely restrict the ability of State prison

industries to market their goods * * *. When

these laws were enacted decades ago, they

represented significant reforms against

exploitation of prison labor. Over the years,

however, they have developed into heavyhanded roadblocks to growth among * * *

prison industry programs * * *.

My amendment would provide limited

exemptions to these restrictions where

inmates have been paid a wage comparable

to that paid for similar work in the private

sector in the locality * * *.

The statutory exception that was

enacted to establish PIECP is codified at

18 U.S.C. Section 1761(c):

* * * [the Federal marketability

prohibitions] shall also not apply to goods,

wares, or merchandise manufactured,

produced, or mined by convicts or prisoners

who—

(1) Are participating in one of not more

than 50 non-Federal prison work pilot

projects designated by the Director of the

Bureau of Justice Assistance; * * *

To become eligible for Bureau of

Justice Assistance (BJA) certification, an

applicant state or local department of

corrections must comply with specified

statutory requirements. It must pay

participating prisoners ‘‘wages not less

than that paid for work of a similar

nature in the locality in which the work

was performed’’ and cannot take more

than 80 percent in deductions from

gross wages for specified purposes

including taxes, reasonable charges for

room and board, family support and

victims’ compensation. 18 U.S.C.

1761(c)(2).

Certain other conditions of

employment must also be met. An

eligible applicant cannot deprive

participating offenders, solely because

of their status as offenders, of the right

to participate in benefits made available

by the Federal or state government to

other individuals on the basis of their

employment, such as workmen’s

compensation. Title 18 U.S.C.

1761(c)(3). PIECP inmates must also

participate on a voluntary basis and

must have agreed to the specific

deductions made from gross wages

pursuant to 18 U.S.C. 1761(c)(2), and all

other financial arrangements resulting

from participation in such employment.

Title 18 U.S.C. 1761(c)(4).

The note following 18 U.S.C. 1761,

although not codified, is public law and

adds two additional requirements on

certified prison industries. The note

requires participating prison industries

to consult with local union

organizations prior to initiating any

project qualifying for a § 1761(c)

exemption. Also, the qualifying

applicant must ensure that paid inmate

employment under the program will not

result in the ‘‘displacement of employed

workers, or be applied in skills, crafts,

or trades in which there is a surplus of

available gainful labor in the locality, or

impair existing contracts for services.’’

The Justice System Improvement Act of

1979 added these provisions, which

became § 827(c) of the Omnibus Crime

Control and Safe Streets Act of 1968.

See Pub. L. 96–157, 93 Stat. 1215,

reprinted in 1979 U.S.C.C.A.N. 2471. In

1984, § 827(c) was redesignated § 819 of

the Omnibus Crime Control and Safe

Streets Act of 1968, as amended. See

Pub. L. 98–473, 98 Stat. 2093.

If all eligibility requirements are met

and an applicant agency acquires BJA

certification, that agency is thereafter

authorized to operate irrespective of

Federal prohibitions on the marketing of

state prison-made goods. Conversely,

non-compliance with these statutory

eligibility requirements could expose an

industry to criminal prosecution under

the Ashurst-Sumners Act. Title 18

U.S.C. 1761(a).

b. The PIECP Program

1. Current State of the Program

Currently, 38 departments of

correction or umbrella authorities are

PIECP Certificate Holders. Under the

Justice System Improvement Act of

1979, Arizona, California, Idaho,

Kansas, Minnesota, Nevada and Utah

were certified. In 1984, under the Justice

Assistance Act of 1984, 13 prison work

pilot projects were certified in: Alaska,

Belnap County (NH), Connecticut, Iowa,

Maine, Missouri, Nebraska, New

Mexico, Oklahoma, Oregon, South

Carolina, Strafford County (NH) and

Washington State. Under the Crime

Control Act of 1990, the following

additional state and local departments

of corrections have been certified:
Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices 36713

Colorado, Delaware, Florida, Hawaii,

Indiana, Louisiana, Maryland, Montana,

North Carolina, Ohio, Red River County

(TX), South Dakota, Tennessee, Texas,

the Texas Youth Commission, Vermont,

Virginia and Wisconsin.

Over 125 private sector businesses

now work in partnership with these

PIECP certified correctional agencies to

employ a total of about 2,500 inmates.

Either the correctional agency or the

private sector enterprise retains project

authority to direct and control inmate

labor, depending on the management

model used. Project implementation has

resulted in the production of myriad

products, including such items as

furniture, sheet metal, video equipment,

clothing, food products, office products,

mattresses, drapery, crutches, and road

signs. In addition, although service

industries were not a threat to the

private sector in 1935 and, thus, were

not included within the scope of the

Ashurst-Sumners prohibition, a number

of service industries have elected to

comply with the PIECP requirements.

Between January 1979 and December

1996, PIECP projects generated

approximately $75 million in gross

wages for inmates. Nearly half of this

amount was diverted to non-inmate

recipients: $5.5 million was deducted

for victims of crime, $16 million was

deducted for room and board payments,

$4.4 million was deducted for family

support and about $8.9 million was

withheld in local, State and Federal

taxes.

BJA monitors the performance of

PIECP work pilot projects to ensure that

they operate in full compliance with all

legislative and administrative program

requirements. Under a grant to the

Correctional Industries Association

(CIA), prison industry professionals

conduct regular, on-site reviews of all

PIECP projects. BJA responds to matters

involving possible non-compliance by

taking appropriate remedial action such

as providing technical assistance or

proposing a corrective action plan.

2. Future Challenges

PIECP is utilized nationwide as a costefficient way to provide inmates with

work experience and training in

marketable job skills, as well as to

reduce idleness among growing prison

populations.

Over time, the limit on the authorized

number of pilot projects has been raised

to meet the demands of interested

applicants. When Congress last

increased the project ceiling to 50, the

House took into consideration a waiting

list of states and counties that had

wanted to participate and noted that

‘‘the demand for certification by state

and local governments indicates a need

for this amendment which will enable

the program to expand and other

jurisdictions to apply.’’ H.R. 681(I),

101st Cong. 202 (1990).

BJA administers PIECP with the

objective of making participation

available to as many qualified

applicants as possible, within the limit

imposed by statutory ceiling. This

Guideline provides applicants with

clarity as to Federal participation

requirements, as well as programmatic

flexibility to allow for PIECP Project

growth in ways that are responsive to

local needs. The Federal requirements

are intended to ensure that the interests

of the private sector and organized labor

are protected. In this way, BJA’s

administrative practices are intended to

address the concerns reflected in the

legislative history antecedent to the

enactment of earlier Federal regulation

of prison-made goods, the HawesCooper Act.

Finally, this revised Guideline

addresses novel issues presented by

new PIECP participants, the private

sector prisons. These entities are unique

in that they render an essential service

traditionally undertaken by public

agencies and they do so for a profit.

Thus, BJA has altered some PIECP

program requirements to insure program

implementation remains consistent with

Congressional intent. Congress enacted

PIECP to introduce public departments

of correction to private sector profitmaking enterprises. Therefore, private

prison industries are invited to

participate in PIECP only as Cost

Accounting Centers designated under

the authority of certified public

departments of correction.

c. Request for Comments

Comments on revisions described in

this Proposed Guideline must be

submitted to BJA no later than 60 days

following the date of publication and

will be considered in the drafting of the

Final Guideline. Existing Certificate

Holders and designated Cost

Accounting Centers will be provided

with a time period of one year, after the

publication date of the Final Guideline,

to make whatever program adjustments

are necessary to come into full

compliance.

III. Program Guidance

a. PIECP Purposes

• To provide a cost-efficient means to

address inmate idleness and to provide

inmates with work experience and

training in marketable job skills. BJA

encourages private sector PIECP

partners to consider post-incarceration

employment to PIECP inmate workers.

• Through inmate wage deductions,

to increase advantages to the public by

providing departments of correction

with a means for collecting taxes and

partially recovering for inmate room and

board costs, by providing crime victims

with a greater opportunity to obtain

compensation, as well as by promoting

inmate family support.

• Through PIECP participation

conditions, to prevent unfair

competition between prison-made goods

and private sector goods.

• To prevent the exploitation of

prison labor.

b. Definitions

Benefits refers to inmate benefit

coverage required by 18 U.S.C.

1761(c)(3). PIECP projects must provide

inmate workers appropriate benefits

comparable to those made available by

the Federal or state government to

private sector employees. The scope of

appropriate benefits coverage is

impacted by whether management of

the Cost Accounting Center is structured

as an employer or customer model and

whether the inmate labor work force is

controlled by a public agency or the

private sector.

BJA refers to the Bureau of Justice

Assistance within the Office of Justice

Programs, U.S. Department of Justice.

Certificate Holder refers to a public

department of corrections, or an

alternate umbrella authority, which is

approved by BJA for PIECP Project

certification. Certificate Holders assume

monitoring and designation

responsibilities with respect to their

designated Cost Accounting Centers. All

PIECP prison-made goods are produced

within Cost Accounting Centers that a

Certificate Holder designates within

itself, its private prison agents or, in the

case or an umbrella authority, within its

membership agencies.

Certification refers to an exercise of

BJA’s discretionary authority to

designate a Prison Work Pilot Project

pursuant to Title 18 U.S.C. 1761(c). BJA

may issue either standard or a

provisional certifications to applicant

projects. BJA certified projects are

excepted from certain Federal

marketability restraints on the transport

of prison-made goods in interstate

commerce, including 18 U.S.C. 1761(a),

and sales to the Federal government in

excess of $10,000, 41 U.S.C. 35.

Cost Accounting Center (CAC) refers

to a distinct PIECP goods production

unit of the industries system that is

managed as a separate accounting entity

under the authority of a Certificate

Holder. All PIECP production activities
36714 Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices

are conducted within the context of a

designated CAC which, generally, is

structured either as a Customer or

Employer Model. All designated CACs

must operate in compliance with the

provisions set forth in 18 U.S.C. 1761(c)

and this Guideline.

Customer Model is a form of a PIECP

Cost Accounting Center management

structure. In this model, the private

sector is engaged in a CAC enterprise

only to the extent that it purchases all

or a significant portion of the output of

a prison-based business owned and

operated by the CAC agency. A

customer model private sector partner

assumes no major role in industry

operations, does not direct production

and has no control over inmate labor.

These functions are performed, rather,

by a department of corrections.

Deductions. CACs may elect to take

deductions from a PIECP inmate

worker’s wages for certain authorized

items. Deductions from PIECP inmate

gross wages, if taken, may be made only

for those items specified in 18 U.S.C.

1761(c)(2), including: Payment of taxes,

reasonable charges for room and board,

allocations for family support and

contributions to any funds established

by law to compensate victims of crime

(no less than 5 percent and no more

than 20 percent). In no event may a

PIECP inmate worker’s total deductions

exceed 80 percent of gross wages and

each and every PIECP inmate worker

must agree, in advance, to all

deductions from gross wages.

Designation is an exercise of a

Certificate Holder’s discretionary

authority to bring a CAC within its

certified PIECP Project. This exercise of

authority results in an extension of

PIECP exception status and an

imposition of compliance requirements

on an identified CAC operating within

the certified PIECP Project.

Employer Model is a form of a PIECP

management structure. In this model,

the private sector owns and operates the

CAC by controlling the hiring, firing,

training, supervision, and payment of

the inmate work force. The department

of corrections assumes no major role in

industry operations, does not direct

production, and exercises minimum

control over inmate labor performance.

These functions are performed, rather,

by the private sector.

Goods include tangible items, wares,

and merchandise.

Locality means the geographic area

impacted by the presence of a PIECP

CAC operation. For PIECP CACs, it is

relevant with regard to: determining

prevailing wage, providing consultation

to appropriate labor and private sector

organizations, and determining whether

a PIECP CAC operation will displace the

private sector labor force. All locality

determinations must be documented as

part of a Notice of Designation. As used

in the calculation of CAC wage rates,

locality is usually a matter for definition

by the appropriate state agency which

normally determines wage rates (i.e., the

State Department of Economic Security).

Minimum wage means the Federal

minimum wage which is the lowest

possible wage that can be paid to private

sector employees under the Fair Labor

Standards Act, 29 U.S.C. 206. Any

special wage program, excepted by law

from the minimum wage requirement in

the private sector, may be utilized by a

PIECP CAC as long as the CAC meets

the same program participation

conditions as private sector participants.

Monitoring refers to the process of

examining Prison Work Pilot Project

activities to ensure continuing

compliance with 18 U.S.C. 1761(c) and

this Guideline. It includes, at a

minimum, BJA’s receipt and analysis of

performance reports and on-site CAC

monitoring visits by BJA, BJA

contractors and Certificate Holders.

NEPA means the National

Environmental Policy Act, Pub. L. 91–

190, 83 Stat. 852 (1970) (codified as

amended at 42 U.S.C. 4321–4347;

implemented under 40 C.F.R. pt. 1500).

Participation means engaging in the

activities and operations of an 18 U.S.C.

1761(c) excepted PIECP Project.

PIECP means the Prison Industry

Enhancement Certification Program as

authorized by 18 U.S.C. 1761(c).

PIECP Exception Status. Any PIECP

Project which produces prison-made

goods pursuant to and under the

conditions set forth in 18 U.S.C. 1761(c)

is excepted from certain Federal

restraints imposed on the marketability

of prison-made goods, including 18

U.S.C. 1761(a) and 41 U.S.C. 35.

PIECP Inmate Worker is a convict or

prisoner who provides labor for a Prison

Work Pilot Project certified under 18

U.S.C. 1761(c); the prisoner benefits

from PIECP by receiving training and

work experience.

Prevailing wage is a wage rate which

is not less than that paid for work of a

similar nature in the locality in which

the work is to be performed, 18 U.S.C.

1761(c)(2).

Prison-made goods include all goods,

wares, and merchandise manufactured,

produced, or mined, wholly or in part,

by convicts or prisoners (except

convicts or prisoners on parole or

probation), or in any penal or

reformatory institution.

Prison Industry means an organized

utilization of inmate labor to produce

goods or render services.

Prison Work Pilot Project (PIECP

Project) refers to one of 50 possible

projects which may be designated by the

Director of BJA under 18 U.S.C. 1761(c).

This term encompasses the operations

of the Certificate Holder’s designated

Cost Accounting Centers (CACs). Any

Prison Work Pilot Project may consist of

one or more CACs.

Prisoner includes prison and jail

inmates, convicts and incarcerated

juvenile offenders, and does not include

prisoners on parole, probation, or

supervised release. Title 18 U.S.C.

1761(a) does not regulate the transport

of goods produced by prisoners on

parole, supervised release, or probation.

Production is the forming anew or

transforming of marketable goods. The

term includes mining and manufacture

and excludes services.

Provisional Certification is issued by

BJA in instances where an applicant has

not yet come into full compliance with

all PIECP requirements, but such

compliance appears imminent. It

entitles the holder to PIECP exception

status for an identified period of time,

may be made contingent upon the

occurrence of identified conditions, and

may or may not be renewed by BJA.

Statutory Exception Status refers to a

prison industry which meets the

statutory requirements set forth in 18

U.S.C. 1761(b), and is thereby entitled to

an exception from the prohibition set

forth in 18 U.S.C. 1761(a).

Supervised Release. 18 U.S.C. 1761(a)

states that the Ashurst-Sumners Act

prohibition does not apply to ‘‘convicts

on parole, supervised release, or

probation.’’ The reference to

‘‘supervised release’’ was added to

§ 1761(a) in 1984, Pub. L. 98–473, § 223,

and is responsive to changes made at

that same time in state and Federal

Sentencing Guidelines. Policy

statements issued by the U.S.

Sentencing Commission explain that

supervised release is a ‘‘new form of

post-imprisonment supervision created

by the Sentencing Reform Act.’’ See

Federal Sentencing Guidelines, 18

U.S.C.A. ch. 7, pt. A (1997).

Umbrella Authority refers to a type of

Certificate Holder which is authorized

by law to administer a PIECP Project

and which consists of state and/or local

correctional agencies located within the

same state. A certified umbrella

authority may designate CACs within its

membership agencies, as well as within

members’ private prisons, and assumes

responsibility for monitoring

compliance with respect to those same

centers.
Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices 36715

c. BJA’s Initial Considerations for

Determining Propriety of Work Pilot

Project Certification

1. BJA’s Exercise of Discretionary

Authority To Define and Certify 50

Prison Work Pilot Projects

(A) BJA may exercise discretionary

authority to designate up to 50 PIECP

Pilot Projects, 18 U.S.C. 1761(c).

(B) BJA may define PIECP eligibility

qualifications and, in accordance with

its own definitions, may exercise agency

discretion to extend or withdraw

certification privileges, as it deems

appropriate.

2. Threshold Inquiry for Determining

Applicability of PIECP Exception Status

Appropriate PIECP participants

include prison industries whose

activities would likely violate the 18

U.S.C. 1761(a) prohibition and would

likely not fit within an 18 U.S.C. 1761(b)

exception. BJA has devised an

administrative approach for identifying

such industries. This approach

incorporates relevant § 1761 (a) and (b)

considerations, including whether a

given prison-made item qualifies as an

excepted agricultural product, whether

a given prison industry activity qualifies

as an unregulated service, and whether

a product distribution activity qualifies

as an intrastate distribution of goods.

These considerations are reflected in the

following threshold inquiry, which BJA

will use to determine whether a prison

industry should be encouraged to apply

for PIECP exception status:

(A) Is a statutory exception applicable

under 18 U.S.C. 1761(b)? The following

prison-made items are excepted from

the prohibition set forth in § 1761(a):

• Parts for the repair of farm

machinery; or

• Commodities manufactured in a

Federal, District of Columbia, or state

institution for use by the Federal

Government, or by the District of

Columbia or by any state or political

subdivision of a state or not-for-profit

organizations. This exception is

intended to inure to the benefit of the

Federal Government, the District of

Columbia, the states (or political

subdivisions thereof) and not-for-profit

organizations and is not intended to

benefit private prisons; or

• Agricultural commodities grown or

cultivated on a farm which retain

continuing substantial identity through

processing stages, if any. In making the

determination as to whether a

processing stage changes a product from

an agricultural commodity to a

manufactured commodity, a relevant

consideration is whether the processing

is incidental or ancillary to agricultural

commodity growth and or cultivation. If

the processing is incidental or ancillary

in nature and is commonly undertaken

by agricultural enterprises, then it

would likely fall within the scope of the

statutory exception.

(B) Could the contemplated activity

trigger 18 U.S.C. § 1761(a) by resulting

in a production of goods by inmates in

any penal or reformatory institution?

The production of goods, which is

regulated by 18 U.S.C. 1761(a), must be

distinguished from inmate services

which are not regulated by the criminal

prohibition. The following factors are

relevant in determining whether a given

activity results in the production of

prison-made goods:

• Has a tangible item been produced,

manufactured or mined?

• Has a tangible item been formed or

transformed?

• Has the activity resulted the

creation of property or in a new,

marketable item?

(C) Could the contemplated activity

trigger 18 U.S.C. 1761(a) by resulting in

a post-production, interstate

transportation of prison-made goods?

• Will there be transportation of

prison-made goods into the flow of

interstate commerce, i.e., across state

lines or from a foreign country into the

United States?

• Is there a commercial economic

enterprise present?

BJA will use this preliminary

threshold inquiry to instill greater

consistency in PIECP eligibility

decision-making. If a prison industry

activity falls within the scope of the

§ 1761(b) statutory exception, the

involved industry need not seek

§ 1761(c) exception status to avoid

§ 1761(a) criminal sanctions.

Additionally, if a prison industry

activity would not result in the

production of goods, interstate transport

of prison-made goods, or would not in

any other way trigger § 1761(a), the

involved industry need not seek

compliance with the requirements set

forth in § 1761(c) or this Guideline.

This threshold inquiry was devised

only for 18 U.S.C. 1761(c) programmatic

purposes and does not reflect the

Department of Justice’s 18 U.S.C.

1761(a) prosecution guidelines. Thus,

reliance on this Guideline, or any BJA

determination based thereon, is not a

complete defense to any civil or

criminal action, but would depend on

other factors as well.

d. Mandatory Program Criteria for

PIECP Participation

1. Eligibility. All public departments

of correction and juvenile justice

agencies authorized by law to

administer prison industry programs are

eligible to apply for PIECP certification;

such public agencies are also eligible

members of umbrella authorities,

authorized by law to administer prison

industry programs, that are seeking

certification. PIECP Certificate Holders

may designate CACs within themselves,

as well as within private prisons with

which they contract for incarceration

services and which are located in the

same state. Private prison industries

may participate in PIECP only as

designated CACs and as part of certified

PIECP Projects located within their

respective states. Non-compliance by

any one designated CAC may result in

PIECP exception status suspension and/

or termination as to that CAC, and if

warranted, its respective Certificate

Holder. Also, within a reasonable period

of time after certification, each

Certificate Holder must have at least one

CAC producing goods and operating

pursuant to its authority or risk losing

certification.

2. Prevailing Wage. PIECP inmate

workers must receive wages at a rate

which is not less than that paid for work

of a similar nature in the locality in

which the work is to be performed. This

requirement benefits society by allowing

for the development of prison industries

while protecting private businesses from

unfair competition that would otherwise

stem from the flow of low-cost, prisonmade goods into the marketplace. PIECP

participants must, therefore, implement

the prevailing wage requirements under

like conditions experienced by private

sector competition. In this regard, the

following requirements are applicable:

(A) Section 1761(c) requires that the

PIECP wage amount be set exclusively

in relation to the amount of pay

received by similarly situated noninmate workers. The statute does not

allow other cost variables to be taken

into consideration, such as unique

expenses incurred as a result of

undertaking production within the

prison environment.

(B) Prevailing wage verification must

be obtained by the appropriate state

agency which determines wage rates

(usually the Department of Economic

Security).

(C) When making PIECP prevailing

wage verifications and re-verifications,

the responsible state agency should

recommend the utilization of a noninmate wage scale which will not result

in the displacement of non-inmate

workers performing similar work in the

relevant locality.

(D) The PIECP prevailing wage must

be received by those inmate workers

performing notable tasks necessary to

produce and / or transport goods in
36716 Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices

interstate commerce. If a similarly

situated, private sector company is

paying wages to obtain services that are

necessary to production, e.g. refuse

pickup, then the PIECP CAC must also

pay such wages to the inmate provider

of like services. In determining which

tasks are covered, the following

considerations are relevant: the amount

of inmate time involved, effort and skill

necessary to accomplish the task, the

regularity of task performance, and

whether the task would have been

performed by the inmate absent PIECP

production.

(E) The prevailing wage must be

verified prior to the initiation of PIECP

participation. Annually, thereafter, the

PIECP participant must re-verify the

adopted wage to ensure that it continues

to be comparable to wages paid for work

of a similar nature in the locality in

which the project is located.

(F) If no such verification can be

obtained from the State Department of

Economic Security, or other similar

department, the PIECP participant is

responsible for establishing a reasonable

prevailing wage. In such instances, the

participant should retain on file, for

BJA’s review:

(1) relevant wage data from a

sufficient number of competitors in the

locality;

(2) data analyses for determining a

reasonable prevailing wage result; and

(3) if possible, a written assessment of

the reasonableness of the resulting

prevailing wage determination by an

appropriate state agency which

normally determines wage rates.

(G) The PIECP prevailing wage can

not be set below the Federal minimum

wage, as defined in the Fair Labor

Standards Act (FLSA), 29 U.S.C. 201 et

seq. Payment of the Federal minimum

wage, however, does not automatically

achieve compliance with the prevailing

wage requirement unless the prevailing

wage for the comparable private sector

industries is, in fact, the Federal

minimum wage.

(H) Overtime, at one and a half times

the rate of regular or prevailing wage,

must be paid for prisoner hours worked

in excess of 40 hours per week. See 29

U.S.C. 207(a) (a payment standard

imposed on private sector competition).

(I) If a CAC pays a wage based on

piece work, the project must apply a

calculation to convert regular wages

paid into a comparable hourly wage.

The calculation should be used as a

routine check to ensure that inmate

workers, paid according to piece rate

work, do not receive less than the

Federal minimum wage. In instances

where the CAC is paying Federal

minimum wage and such a wage is less

than the industry standard for the

prevailing wage, the CAC must be able

to identify inmate worker performance

variances as justification for the wage

rate.

(J) BJA strongly encourages the use of

wage plans that take into consideration

a PIECP worker’s experience, seniority,

and performance.

3. Non-Inmate Worker Displacement.

PIECP CAC operations must not result

in displacement of employed workers;

be applied in skills, crafts, or trades in

which there is a surplus of available

gainful labor in the locality; or

significantly impair existing contracts.

The term ‘‘displacement,’’ as used in

this provision, includes all such

prohibited activities, as well as the

transfer of private sector jobs to PIECP

inmates. This prohibition is intended to

protect the private sector partner’s noninmate employees, as well as all other

non-inmate workers who perform work

of a similar nature in the same locality

in which the CAC is located.

(A) Regarding the possibility of

displacement among non-inmate

employees of private sector partners in

the same locality as the CAC:

(1) BJA will presume non-compliance

where there is a non-inmate worker’s

job replacement by a PIECP inmate

worker or where a non-inmate worker’s

job function is eliminated or adversely

impacted, to a significant degree, and

there is a concomitant assumption of a

similar job function by a PIECP inmate

worker. When evaluating such

circumstances, BJA will not consider

the private sector partner’s intent or

economic viability.

(2) Prior to CAC initiation, the CAC

applicant must provide BJA with

written documentation reflecting the

private sector partner’s agreement not to

displace its non-inmate employees with

PIECP inmate labor in violation of the

18 U.S.C. 1761(c) statutory note.

(B) Prior to project initiation, all CAC

applicants must show through written

verification by the State Department of

Economic Security (or other appropriate

state agency) that the PIECP project will

not result in displacement of noninmate workers performing the same

work, regardless of wage rate. In cases

where an appropriate state agency

cannot provide this service, the

applicant CAC should propose to and

confer with BJA as to alternative

measures to address this requirement.

(C) In instances where BJA finds that

CAC implementation results in private

sector worker displacement, the CAC

must either cease its operations or

comply with a BJA-approved corrective

action plan, if BJA proposes such a plan

under Section IV. f. of this Guideline,

infra.

(D) BJA strongly recommends that

CAC job development be oriented

toward the creation of new jobs within

the locality.

4. Benefits. PIECP projects must

provide inmate workers appropriate

benefits comparable to those made

available by the Federal or State

Government to private sector

employees, including workers’

compensation and, under certain

circumstances, Social Security.

(A) By statute, in some states, inmates

are not eligible to participate in workers’

compensation programs. Provision of

comparable workers’ compensation

benefits is acceptable as long as the CAC

can demonstrate comparability of such

benefits with those secured by the

Federal or state Government for private

sector employees.

(B) The PIECP CAC management

model impacts whether the CAC must

provide Social Security benefits to

PIECP inmate workers. Where the

employer model is utilized and the

private sector directs and controls the

PIECP inmate worker, the PIECP

participant must provide PIECP inmate

workers with Social Security benefits.

Where a customer model is utilized and

the state directs or controls the PIECP

inmate worker, BJA recognizes the

applicability of other provisions of

Federal law which may operate to

preclude the provision of PIECP inmates

with certain benefits, including Social

Security.

5. Deductions. Participating CAC’s are

not required to take deductions from

PIECP inmate wages. However, if a CAC

exercises its discretion to take

deductions from a PIECP inmates’ gross

wages, such deductions can be taken

only under the following conditions:

(A) Deductions from gross wages, if

made, may be withheld only for the

following authorized purposes:

(1) taxes (Federal, state, local);

(2) in the case of a state prisoner,

reasonable charges for room and board

as determined by regulations issued by

the Chief State Correctional Officer;

(3) allocations for support of family

pursuant to state statute, court order, or

agreement by the offender; and

(4) contributions of not more than 20

percent, but not less than 5 percent of

gross wages to any fund established by

law to compensate the victims of crime.

Such deductions, in aggregate, cannot

exceed 80 percent of gross wages.

(B) PIECP inmate workers must be

paid, credited with, or otherwise benefit

legally from, the 20 percent gross

remainder. In this regard, the CAC may

direct the 20 percent gross remainder to
Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices 36717

a PIECP inmate worker’s expense

accounts, savings accounts, or toward

the settling of the worker’s legal

obligations, including the payment of

fines and restitution.

(C) Each Certificate Holder, through

its respective Chief State Correctional

Officer, retains flexibility with respect

to determining appropriate room and

board charges that may be deducted

from PIECP inmate workers’ gross

wages.

(1) Consistent with 18 U.S.C.

§ 1761(c)(2)(B), BJA requires only that

such charges be reasonable as

determined by regulations issued by the

Chief State Correctional Officer, in the

case of state prisoners. In the case of

non-state prisoners, this determination

shall be made in accordance with

regulations issued by the Chief

Correctional Officer of the state in

which the PIECP inmate is incarcerated.

(2) The legislative history of 18 U.S.C.

§ 1761(c) reflects a congressional intent

to permit the use of the room and board

deduction to lower costs otherwise

incurred by the public for inmate

incarceration. Thus, prior to making

room and board deductions, private

prison CACs must obtain written

approval of such a proposed deduction

from the Chief State Correctional

Officers for the states in which the

PIECP inmate workers were convicted.

(D) A PIECP inmate’s gross wages may

be subjected to a deduction for the

purpose compensating crime victims if

the deducted amount is deposited into

a fund established by law for the

purpose of providing crime victim

compensation. State crime victim

compensation funds typically qualify as

authorized recipients of such deducted

amounts. Amounts deducted by private

prison CACs should be deposited in the

crime victim compensation funds

established in those states in which the

PIECP inmates were convicted.

6. Voluntary PIECP Inmate Worker

Participation. The Inmate Worker must

indicate, in writing, that he or she:

(A) agrees voluntarily to participate in

the PIECP project, and

(B) agrees voluntarily, and in advance,

to specific deductions made from gross

wages, as well as all other financial

arrangements made as to earned PIECP

wages.

7. Consultation with Organized Labor.

PIECP CACs must:

(A) consult with representatives of

local union central bodies or similar

labor union organizations prior to the

initiation of any certified or designated

CAC project. CACs should consult with

as many of such organizations as have

members which may be affected by the

types of work to be performed by the

PIECP inmates. If there are no local

union bodies or labor organizations,

consultation must be made with state

union bodies or similar state-wide labor

organizations.

(B) provide adequate information

about the contemplated PIECP

participation such as, at a minimum, an

identification of the scope of the

intended CAC and projected initiation

date, as well as an explanation of the

fact that statutory consultation is

required and comments are invited.

CACs should retain documentation

reflecting provision of adequate

consultation.

8. Consultation with Local Private

Industry. PIECP CACs must:

(A) consult with representatives of

local businesses that may be

economically impacted by CAC

production prior to beginning

operations, and

(B) provide adequate information

about the contemplated PIECP

participation such as, at a minimum, an

identification of the scope of the

intended CAC and projected initiation

date as well as an explanation of the fact

that statutory consultation is required

and comments are invited. CACs should

retain documentation reflecting

provision of adequate consultation.

9. Compliance with the National

Environmental Policy Act (NEPA). The

review and approval of PIECP

certification applications as well as the

designation of PIECP CACs must

comply with NEPA and other related

Federal environmental review

requirements. See NEPA, 42 U.S.C.

4321–4347 and 40 C.F.R. pt. 1500. See

also 28 C.F.R. pt. 61 (Department of

Justice procedures for implementing

NEPA); 28 C.F.R. pt. 61 app. D

(procedures specific to Federal actions

undertaken by the Office of Justice

Programs).

(A) A BJA PIECP certification, or a

CAC designation under an issued

certification, constitutes a ‘‘Federal

action,’’ as defined by 40 C.F.R.

§ 1508.18 of the Council on

Environmental Quality’s (CEQ)

regulations for implementing NEPA.

Consistent with the CEQ regulations,

PIECP applicants and CACs are required

to submit for BJA review environmental

data and information regarding their

proposed activities and, if necessary,

environmental assessments. Applicants

and CACs must also assist BJA in the

preparation of any required

environmental impact statements.

(B) Title 28 C.F.R. Part 61 App. D

provides NEPA compliance guidance to

PIECP applicants and CACs, including

the following:

(1) Actions entailing minor renovation

projects or remodeling do not normally

require an environment impact

statement or an environmental

assessment, unless, for example the

actions would be located in or

potentially affect a floodplain; a

wetland; a listed species or critical

habitat for an endangered species; or a

property that is listed on or may be

eligible for listing on the National

Register of Historic Places.

(2) Actions that normally require an

environmental assessment, but not

necessarily an environmental impact

statement include: renovations and

expansions that change the basic prior

use of a facility or substantially change

its size; change in use of an existing

facility that results in the increased

production of liquid, gaseous, or solid

wastes; new construction; research and

technology whose anticipated and

future application could be expected to

have an effect on the environment; and

new operations involving the use of

hazardous, toxic, radioactive, or

odorous materials. Assessments of such

activities which result in BJA ‘‘findings

of significant impact’’ will necessitate

the preparation of environmental impact

statements in compliance with NEPA

and its implementing regulations.

(3) Additionally, no certification will

be approved nor can any designation be

provided or maintained if the

application or designation includes a

facility in non-compliance with any

Federal, state, or local environmental

law or regulation.

IV. PIECP Administration

a. Certificate Holders. BJA may

exercise its discretionary authority to

certify up to 50 PIECP Projects. Eligible

applicants may seek certification by

submitting an application to BJA in

accordance with the requirements set

forth in BJA’s PIECP Certification

Application, which will be provided

upon request, and subpart IV.a.2, infra.

BJA’s review of submitted applications

will be conducted as outlined in

subparts IV.a.3 and a.4, infra. Once a

certificate is issued, the holder assumes

the authority and responsibilities set

forth in subparts IV.a.5 and a.6, infra.

1. Project Structure. All public

departments of correction, authorized

by law to administer prison industry

programs, are eligible to apply for BJA

certification. Certified applicants may

designate one or a number of Cost

Accounting Centers (CACs) under their

authority. Certificate Holders may also

designate CACs within private prisons

with which they contract for

incarceration services and which are

located in their respective states. BJA
36718 Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices

will consider alternative program

structures suggested by certification

applicants, including, but not limited to,

applicant umbrella authorities, as

described in subpart III. D. 1, supra.

2. Application Content. All

applications for PIECP Project

Certification shall include the following:

(A) Assurances of Authority. The

Certificate Holder must provide written

assurance to BJA that it has in place

appropriate statutory and administrative

authority to meet all mandatory program

criteria and, in particular, to monitor

CAC compliance throughout the

proposed PIECP Project.

(B) Documentation to Show

Compliance with Mandatory Program

Criteria. The applicant must submit all

documentation necessary to show CAC

compliance with the nine mandatory

program criteria outlined in Section III.

d., supra.

(C) Project Description. The applicant

must describe key project elements,

including the process to be used to

designate and monitor compliance of

CACs with 18 U.S.C. § 1761(c) and this

Guideline.

3. BJA Review. PIECP applications

will be reviewed by BJA on a first-come,

first-served basis. Awards of

certification are discretionary exercises

of authority by BJA under 18 U.S.C.

1761(c). No certification will be

awarded, however, unless there is a

determination that the applicant has

met the mandatory participation criteria

outlined in this Guideline. Applicants

will be notified in writing of BJA’s

award or denial of certification. The

hearing and appeal procedures set forth

in 28 C.F.R. Part 18 do not apply to

denied PIECP applicants. Certified

applicants will be informed of the

effective date of BJA’s certification.

4. Standard or Provisional

Certification. A standard certification

may be issued by BJA to an approved

Certificate Holder applicant when all

mandatory program criteria have been

met. When one or more mandatory

program criteria have not been met, but

when steps have been taken to ensure

that those criteria will be met within a

reasonable period of time, then a

provisional certification may be issued

by BJA in instances where the

withholding of certification would

significantly impair the applicant’s

ability to further develop its project. The

terms of the provisional certification

will be made specific to the nature of

the unmet mandatory criteria and may

be made contingent upon the

occurrence of identified conditions.

Provisional certifications may be issued

for no longer than one year from the

date of issuance and may be subject to

renewal, at BJA’s discretion.

5. Certificate Holder Designation

Authority:

(A) The Certificate Holder may

exercise CAC designation authority with

respect to CACs operating under its

authority, including in private prisons

with which it contracts for incarceration

services and which are located in its

respective state. To exercise this

authority, a Certificate Holder must first

determine that a proposed CAC has

complied with the requirements set

forth in this Guideline and in 18 U.S.C.

1761(c). Whenever the Certificate

Holder elects to exercise this authority

after certification application approval,

it must submit a Notice of Designation

Form to BJA that provides the following

information and documentation:

(1) Cost Accounting Center Name and

Location;

(2) Proposed number of workers;

(3) Item(s) to be produced;

(4) Proposed consumer market

(including anticipated geographic

distribution);

(5) Description of private sector

involvement, including models that will

be used in working with private

enterprise;

(6) Locality determination, and

supporting justification;

(7) Description of inmate

compensation plans;

(8) Documentation of prevailing

verification;

(9) Identification of deductions to be

taken and percentage of each from

PIECP inmate’s gross wages;

(10) Documentation of private sector

partner’s agreement not to displace its

non-inmate employees with PIECP

inmate labor determination;

(11) Documentation of nondisplacement verification;

(12) As to any CACs within private

prisons, written state approval of a

proposed room and board deduction, in

compliance with Section III.d.5.(D) of

this Guideline, supra; and

(13) Documentation of the

environmental impacts of the CAC’s

existing and proposed activities.

(B) The Certificate Holder may, in its

own discretion, undesignate any

previously designated CAC. In such

instances, the Certificate Holder must

submit to BJA an Undesignation Form

providing the following information:

(1) Cost Accounting Center Name and

Location;

(2) Reasons for Undesignation; and

(3) Effective Date of Undesignation.

(C) BJA may, at any time deemed

necessary to resolve compliance

concerns and upon the issuance of

written notice, suspend a Certificate

Holder’s authority to designate

additional Cost Accounting Centers.

6. Certificate Holder Monitoring

Responsibilities: As to all designated

CACs, the Certificate Holder must

assume the following monitoring

responsibilities:

(A) Undertake all reporting and

evaluation activities deemed necessary

to ensure continuing designated CAC

compliance; and

(B) Respond to all BJA requests for

information and cooperation aimed at

ensuring Project compliance.

b. Cost Accounting Centers’ PIECP

Exception Status. A CAC is entitled to

operate under PIECP exception status.

1. To retain this status, the CAC must

comply with all PIECP participation

obligations to its Certificate Holder and

to BJA, including:

(A) Maintaining continuous

compliance with the requirements set

forth in 18 U.S.C. 1761(c) and in III.d),

supra, of this Guideline; and

(B) Responding to all monitoring

requests for information and

cooperation aimed at maintaining

continued compliance with this

Guideline.

2. The CAC must promptly report to

the Certificate Holder any contemplated

change in operations which may affect

its ability to maintain statutory and

regulatory compliance.

c. Compliance Reviews:

1. Performance Reports. Within 30

days following the close of each

calendar quarter, each CAC must submit

a quarterly performance report to its

Certificate Holder in a form prescribed

by BJA. The performance report

describes activities undertaken during

the prescribed period. A consolidated

report of all CAC activity must be

submitted to BJA by the Certificate

Holder within 45 days following the

close of each calendar quarter.

2. Monitoring Reviews. BJA and BJA

technical assistance contractors are

authorized to perform desk and on-site

reviews of all PIECP participants,

including all CACs, as deemed

necessary. On-site reviewers may

request access to any and all

documentation necessary to assist in

determining compliance with the

requirements of this guideline and 18

U.S.C. 1761. Monitored participants will

be advised in writing of the results of

any such reviews. Immediate corrective

action must be taken to address

determinations of non-compliance and/

or to respond to issues that raise

compliance related concerns for BJA.

d. BJA’s PIECP Administration. BJA’s

PIECP responsibilities include the

following:
Federal Register / Vol. 63, No. 129 /Tuesday, July 7, 1998 / Notices 36719

1. Review and approval of Certificate

Holder PIECP applications;

2. Monitoring to determine

compliance status of operations within

all CACs;

3. PIECP exception status termination

or suspension for cause related to

substantial non-compliance;

4. Liaison with other Federal agencies

that may affect PIECP operations;

5. Provision of compliance-related

technical assistance; and

6. Any and all other functions

necessary to administer the program in

compliance with 18 U.S.C. 1761(c).

e. PIECP Exception Status

Suspension/Termination

1. Notice of Possible Compliance

Violation. Alleged facts indicative of

non-compliance shall be communicated

in writing by BJA to the involved

Certificate Holder and the involved

designated CAC. These parties must

respond to the allegations, in writing,

within 15 days after receipt of the notice

of non-compliance determination.

Immediate corrective action must be

taken to address determinations of noncompliance.

2. Voluntary Compliance Agreements.

If BJA determines that noncompliant

practices persist, BJA may, in its

discretion, propose a voluntary

compliance agreement to the involved

Certificate Holder.

3. Failure to Achieve Compliance and

Effect of Non-Compliance. If a voluntary

compliance agreement is not presented

by BJA or is not accepted or adequately

implemented by the Certificate Holder

within 30 days after receipt of such an

agreement, BJA may suspend the

Certificate Holder’s certification and/or

CAC exception status.

4. PIECP Exception Status Suspension

and Termination. A certification may be

terminated by BJA if it has been inactive

(no production within a designated

CAC) or suspended for six consecutive

months. A certification and/or

designation may be suspended, and six

months thereafter, terminated upon: (1)

Issuance of a notice of a determination

that the Certificate Holder and/or

designated CAC is not acting in

compliance with the requirements of 18

U.S.C. 1761, this Guideline or the

conditions set forth in its certificate; or

(2) in the discretion of the Director of

BJA and upon a re-definition of a PIECP

Project authorized under 18 U.S.C.

1761(c). Termination or suspension of

the exception status of one designated

CAC will not automatically impact the

PIECP exception status of other CACs

under the same certification unless the

PIECP Project certification is suspended

or terminated. The hearing and appeal

procedures set forth in 28 C.F.R. Part 18

do not apply to PIECP applicants or

participants who have had PIECP

exception status suspended or

terminated under this provision.

Dated: June 26, 1998.

Nancy Gist,

Director, Bureau of Justice Assistance.

[FR Doc. 98–17757 Filed 7–6–98; 8:45 am]

BILLING CODE 4410–18–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

[Notice 98–087]

NASA Advisory Council (NAC), Space

Science Advisory Committee (SScAC);

Meeting

AGENCY: National Aeronautics and

Space Administration.

ACTION: Notice of meeting.

SUMMARY: In accordance with the

Federal Advisory Committee Act, Pub.

L. 92–463, as amended, the National

Aeronautics and Space Administration

announces a forthcoming meeting of the

NASA Advisory Council, Space Science

Advisory Committee.

DATES: Wednesday, July 29, 1998, 8:30

a.m. to 5:30 p.m.; Thursday, July 30,

1998, 8:00 a.m. to 6:00 p.m.; Friday, July

31, 1998, 8:30 a.m. to 12:30 p.m.

ADDRESSES: MIC 6, NASA Headquarters,

300 E Street, SW, Washington, DC

20546.

FOR FURTHER INFORMATION CONTACT: Dr.

Jeffrey Rosendhal, Code S, National

Aeronautics and Space Administration,

Washington, DC 20546, 202/358–2470.

SUPPLEMENTARY INFORMATION: The

meeting will be open to the public up

to the capacity of the room. The agenda

for the meeting is as follows:

—OSS Program and Budget Status

—Science Metrics/FY 2000 Performance

Plan

—Final Report of the R&A and MO&DA

Task Force

—Theme Status Reports/Reports from

Subcommittees

—Research Program Update

—Technology Program Status and

Planning

It is imperative that the meeting be held

on these dates to accommodate the

scheduling priorities of the key

participants. Visitors will be requested

to sign a visitor’s register.

Dated: June 24, 1998.

Matthew Crouch,

Advisory Committee Management Officer,

National Aeronautics and Space

Administration.

[FR Doc. 98–17953 Filed 7–6–98; 8:45 am]

BILLING CODE 7510–01–P

NUCLEAR REGULATORY

COMMISSION

[Docket Nos. 50–295 and 50–304]

Commonwealth Edison Company;

(Zion Nuclear Power Station, Units 1

and 2); Exemption

I

Commonwealth Edison Company

(ComEd, the licensee) is the holder of

Facility Operating License Nos. DPR–39

and DPR–48, which authorize operation

of the Zion Nuclear Power Station,

Units 1 and 2. The licenses provide,

among other things, that the licensee is

subject to all rules, regulations, and

orders of the Commission now or

hereafter in effect.

II

In its letter dated March 12, 1998,

ComEd requested an exemption from

the Commission’s regulations. Pursuant

to 10 CFR 50.34(b), each application for

a license to operate a facility shall

include a Final Safety Analysis Report

(FSAR). This report shall include

information that describes the facility,

presents the design bases and the limits

on its operation and presents a safety

analysis of the structure, systems and

components of the facility.

Title 10 of the Code of Federal

Regulations, Part 50, Section 71 (10 CFR

50.71), ‘‘Maintenance of records, making

of reports,’’ states that all light-water

nuclear power reactors shall update

their FSAR periodically. Pursuant to 10

CFR 50.71(e)(4), the time interval for the

subsequent FSAR updates must not

exceed 24 months. The last full update

of the Zion FSAR was submitted to the

NRC on July 5, 1996. Consequently, the

next update would be required to be

submitted no later than July 1998.

However, ComEd is requesting an

exemption from this requirement to

allow them to update the FSAR to

reflect the present condition of the

units.

By letters dated February 13, 1998,

and March 9, 1998, ComEd informed the

NRC that Zion Nuclear Power Station,

Units 1 and 2, have permanently ceased

operations and both units are

completely defueled and all fuel has

been placed in the spent fuel pool for

long-term storage. By letter dated May 4,

1998, the NRC acknowledged Zion’s

permanent cessation of power operation

and permanent removal of fuel from the

reactor vessels.

Many of the systems and components

previously required for safety are no

longer needed because the Zion units

are permanently shut down. Therefore,

updating the current FSAR will provide