ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 280
(Senators Green, White and Chafin, original sponsors)
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[Passed April 11, 2009; to take effect July 1, 2009.]
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AN ACT to repeal §28-5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5,
§28-5B-6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11,
§28-5B-12, §28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B-
17 and §28-5B-18 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new
article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4,
§25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10,
§25-7-11, §25-7-12, §25-7-13, §25-7-14, §25-7-15, §25-7-16 and
§25-7-17, all relating to enacting the Correctional Industries
Act of 2009; authorizing the Commissioner of the Division of
Corrections to enter into correctional industries contracts,
develop a marketing plan, create catalogues and a website and
determine prices; purchasing inmate-made articles and products
by state agencies mandatory; providing exceptions; creating
the Correctional Industries Account; prohibiting sale of
inmate-made goods on the open market; providing penalties;
authorizing the establishment of prison industry enhancement certification programs pursuant to Title 18 U. S. C. §1761(c);
providing for agreements between private entities and the
commissioner or the Director of the Division of Juvenile
Services to establish the federal programs; providing for the
contents of the agreements; and updating certain terms.
Be it enacted by the Legislature of West Virginia:
That §28-5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5, §28-5B-
6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11, §28-5B-12,
§28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B-17 and §28-5B-18
of the Code of West Virginia, 1931, as amended, be repealed; and
that said code be amended by adding thereto a new article,
designated §25-7-1, §25-7-2, §25-7-3, §25-7-4, §25-7-5, §25-7-6,
§25-7-7, §25-7-8, §25-7-9, §25-7-10, §25-7-11, §25-7-12, §25-7-13,
§25-7-14, §25-7-15, §25-7-16 and §25-7-17, all to read as follows:
ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2009.
§25-7-1. Legislative findings.
The Legislature finds that the means now provided for the use
of inmate labor are inadequate to furnish a sufficient number of
inmates with employment. It is the intent of this article:
(a) To provide more adequate, regular and suitable employment
for the inmates and confined juvenile or youthful offenders of this
state;
(b) To use the labor of inmates and confined juvenile or
youthful offenders for self-maintenance and to reimburse this state
for expenses incurred by reason of their crimes and confinement;
(c) To provide for the requisition and distribution of correctional industries articles and products directly through
established state authorities, with no possibility of private
profit except for those specific articles and products manufactured
and sold pursuant to 18 U. S. C. §1761(c), the Prison Industry
Enhancement (PIE) Certification Program, and pursuant to sections
thirteen, fourteen, fifteen and sixteen of this article; and
(d) To provide for correctional industries to be profitable
in view of the fact that it is a self-sufficient authority.
§25-7-2. Citation of article.
This article may be cited as the Correctional Industries Act
of 2009.
§25-7-3. Establishment of industries at correctional facilities;
purposes and extent.
The Commissioner of the Division of Corrections or the
commissioner's designee has exclusive authority to execute
contracts for the sale of products manufactured or serviced at
state correctional facilities, as necessary to carry out the
provisions of this article. The commissioner or designee is
authorized to purchase equipment, raw materials and supplies and to
employ necessary supervisory personnel to establish and maintain,
at state correctional facilities and institutions under the
commissioner's control, industries which use the services of
inmates to manufacture and produce articles and products for use by
any office, department, institution or agency supported, in whole
or in part, by this state or its political subdivisions.
§25-7-4. Correctional industries service contracts.
(a) The commissioner may enter into contracts with private
entities under which inmate or resident labor is provided through
correctional industries for work involving the delivery of products
or for service work. Service work means work which includes, but
is not limited to, repairs, replacement of original manufactured
items, packaging, sorting, recycling, labeling or similar work that
is not original equipment manufacturing. The use of inmate or
resident labor may not result in the displacement of civilian
workers employed in the local region where the work is performed.
The division may negotiate the wage for inmate or resident labor
under correctional industries contracts and, except as provided in
sections thirteen, fourteen, fifteen and sixteen of this article,
the wage may be less than the prevailing wage for work of a similar
nature in the private sector.
(b) The Division of Corrections, in cooperation with the
Department of Commerce, shall develop and maintain a marketing plan
encouraging private sector businesses to employ inmates through the
correctional industries program.
§25-7-5. Purchase of inmate-made goods by state agencies.
(a) On and after the effective date of this article, all
offices, departments, institutions and agencies of this state
supported, in whole or in part, by state funds shall purchase all
articles or products which they require from the commissioner, if
those articles or products are produced or manufactured by
correctional industries, as provided by this article. No state office, department, institution or agency may purchase an article
or product which correctional industries produces from any other
source, unless specifically excepted from the provisions of this
section pursuant to section six of this article.
(b) Purchases of correctional industries articles or products
by state offices, departments, institutions and agencies shall be
made on requisition by the office, department, institution or
agency requiring the articles or products.
(c) Political subdivisions, not-for-profit corporations and
charitable agencies chartered in West Virginia, units of the
federal government and units of government of other states may
purchase articles and products produced by correctional industries.
Entities which contract with the state, its political subdivisions,
its agencies or its public institutions may purchase from
correctional industries articles and products used in the
performance of their contracts.
§25-7-6. Exceptions to mandatory purchase requirement.
Exceptions from the mandatory purchase provisions of section
five of this article may be granted when a correctional industries
article or product does not meet the reasonable requirements of the
requesting state office, department, institution or agency, or when
the requisition cannot be fulfilled because of insufficient supply
or other reason. No state office, department, institution or
agency may evade the requirements of section five of this article,
or of this section, making insubstantial variations from the
characteristics of correctional industries products or articles.
§25-7-7. Catalogues and a website of articles and products made
and produced.
The commissioner shall arrange for the creation and updating
of catalogues and a website containing descriptions of the
correctional industries
articles and products manufactured or
produced pursuant to the provisions of this article. The
commissioner shall make copies of the catalogue and the website
address available to entities eligible to acquire
correctional
industries
articles and products.
§25-7-8. Commissioner to determine prices.
The commissioner or the commissioner's designee shall
determine the prices of correctional industries
articles and
products. The prices shall be uniform for all and as near
as is
practicable
to the fair market price.
§25-7-9. Annual statements by the commissioner.
At the close of each fiscal year, t
he commissioner shall
prepare a financial report on the financial condition of the
correctional industries operation,
in accordance with generally
accepted accounting principles. Within sixty days after the end of
the fiscal year,
the commissioner shall file the report with the
Secretary of the Department of Military Affairs and Public Safety,
the Secretary of the Department of Administration and the Office of
the Legislative Auditor.
§25-7-10. Indebtedness for capital outlay projects.
To carry out the provisions of this article, the commissioner is authorized to enter into contracts to acquire and purchase
equipment, tools, supplies and materials, with payment to be made
over a period not exceeding five years.
§25-7-11. Correctional industries account.
(a) There is hereby created in the State Treasury a special
revenue account designated the Correctional Industries Account.
All funds collected from the sale or disposition of articles and
products manufactured or produced by
correctional industries
in
accordance with this article shall be deposited in this account.
(b) Except as provided in subsection (c) of this section,
funds collected and deposited may be used only to purchase
manufacturing supplies, equipment, machinery and materials used to
carry out the purposes of this article; to pay necessary personnel;
and to defray necessary expenses, including inmate earnings, all of
which are under the direction of the commissioner and subject to
the commissioner's approval.
(c) The Correctional Industries Account may not be maintained
in excess of the amount necessary to efficiently and properly carry
out the purposes of this article. In no event may the Correctional
Industries Account be maintained in excess of $1,500,000. Any
moneys in the account exceeding $1,500,000 shall be transferred to
the State Treasury and credited to the General Revenue Fund of the
state.
§25-7-12. Sale of inmate-made goods on open market prohibited;
penalty; exceptions.
(a) Subject to the provisions of subsections (e) and (f) of
this section and section five of this article, it is unlawful to
sell or offer for sale on the open market any articles or products
manufactured or produced, wholly or in part, by inmates of this
state or any other state. This section does not apply to articles
or products manufactured and sold pursuant to sections thirteen,
fourteen, fifteen and sixteen of this article; pursuant to the
requirements of 18 U. S. C. §1761(c), the Prison Industry
Enhancement (PIE) Certification Program; or products made with
waste tires. Any person violating the provisions of this
subsection is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $200 nor more than $5,000 or confined
not less than three months nor more than one year, or both. Each
sale or offer for sale shall constitute a separate offense under
this subsection.
(b) Any use of waste tires shall comply with applicable laws
and with the rules of the Division of Environmental Protection.
(c) Products made by inmates from waste tires and sold on the
open market must be competitively priced with privately produced
goods of the same nature and may not be sold at a loss.
(d) Profits earned from the sale of products made by inmates
from waste tires shall be deposited in the Correctional Industries
Account to reimburse funds expended collecting waste tires and
producing waste tire products, and to cover the reasonable cost of
periodic replacement of outdated, obsolete or inoperable machinery
or equipment used in such collection or production. Any funds remaining shall be divided equally between the Correctional
Industries Account and the Crime Victims Compensation Fund created
by article two-a, chapter fourteen of this code.
(e) Notwithstanding the provisions of subsection (a) of this
section, any article or product manufactured or produced, wholly or
in part, by inmates of West Virginia correctional facilities which
is designed and intended to be used solely by blind and persons
with disabilities, including, but not limited to, braille books and
reading materials, may be sold or distributed on the open market by
the Division of Corrections or other state department or agency.
(f) Notwithstanding the provisions of subsection (a) of this
section, arts and crafts produced by inmates may be sold to the
general public by the Division of Corrections or by such other
state agencies or departments as the commissioner designates. The
arts and crafts may be sold only on consignment, so that the
inmates whose arts and crafts products are sold receive payment for
the products. Payments shall be deposited in accounts or funds and
managed as provided in section three-a, article one of this
chapter: Provided, That when the Division of Corrections or other
agency or department of state government provides materials used in
the production of an arts and crafts product, the fair market value
of such materials may be deducted from the account of the
individual inmate after the sale of the product.
(g) For purposes of this section, "arts and crafts" means
articles produced individually by artistic or craft skill such as
painting, sculpture, pottery, jewelry or similar articles.
§25-7-13. Establishment of programs authorized by the federal
Prison Industry Enhancement (PIE) Certification Program for
employment of inmates by private persons; lease of land and
improvements.
(a) The Commissioner of the Division of Corrections may
establish programs for the employment of inmates by a private
person or entity for the manufacture of articles and products as
part of a program authorized pursuant to 18 U. S. C. §1761(c), the
Prison Industry Enhancement (PIE) Certification Program. In
establishing these programs, the commissioner may enter into
agreements with private persons or entities to construct or lease
facilities at a state adult correctional facility, or at another
agreed location, for manufacturing and processing goods or for any
other business, commercial or agricultural enterprise.
(b) In connection with an agreement made under subsection (a)
of this section, the commissioner may lease land and improvements
on the grounds of a state correctional facility for use by the
private party to the agreement. Any such lease shall be for a term
of not more than twenty years and may contain options for renewal.
§25-7-14. Agreement between commissioner and private person for
manufacturing pursuant to Prison Industry Enhancement (PIE)
Certification Program; wages; inmate participation on
voluntary basis; and workers' compensation
.
(a) The Commissioner of the Division of Corrections and a
private person or entity may enter into an agreement to establish a program for inmates to manufacture articles and products pursuant
to the federal Prison Industry Enhancement (PIE) Certification
Program. The agreement shall include the following:
(1) That a participating inmate be paid at a rate not less
than that paid for similar work in the same locality's private
sector, including applicable wage increases for overtime work;
(2) That an inmate's work or participation in a PIE
certification program shall be only on a voluntary basis and only
after the inmate has been informed of the conditions of
participation;
(3) That, in the discretion of the commissioner or the
commissioner's designee, any inmate may be removed from or refused
participation in the PIE certification program;
(4) That the agreement will not result in the displacement of
civilian workers; and
(5) That the private person or entity shall provide for
workers' compensation insurance, or equivalent coverage, to inmates
participating in the PIE certification program.
(b) The provisions of this section shall not apply to
correctional industry service contracts under section four of this
article or to operations authorized in section three of this
article that are restricted from sale in the open market.
(c) A commercial or agricultural enterprise established under
this chapter is a private enterprise subject to federal and state
laws governing the operation of similar enterprises.
(d) The earnings of an inmate participating in a PIE certification program under this article shall be deposited in the
Inmate Trust Account with the Division of Corrections. The
earnings shall be paid to the inmate after withholding of state,
federal and local taxes, and after other deductions provided for in
this chapter, including expenses for room and board: Provided, That
the commissioner shall adopt policies and procedures for the
additional deduction from an inmate's earnings of not less than
five percent nor more than twenty percent, to be paid into the
Crime Victims Compensation Fund created by article two-a, chapter
fourteen of this code. Total deductions shall not exceed eighty
percent of the inmate's gross earnings. Earnings deposited by the
commissioner, with accrued interest, shall be paid to the inmate no
later than at the inmate's discharge or release on parole.
(e) Spousal support or child support shall be deducted from an
inmate's earnings as directed by the inmate or by court order. If
the inmate's dependents are receiving Temporary Assistance for
Needy Families (TANF), the disbursements shall be made to the
Bureau for Child Support Enforcement or any other state's public
assistance agency.
§25-7-15. Establishment of programs authorized by the federal
Prison Industry Enhancement (PIE) Certification Program for
employment of juvenile residents by private persons; lease of
land and improvements.
(a) The Director of the Division of Juvenile Services may
establish programs for the employment of residents by a private person or entity for the manufacture of articles and products as
part of a program authorized pursuant to 18 U. S. C. §1761(c), the
Prison Industry Enhancement (PIE) Certification Program. In
establishing these programs, the director may enter into agreements
with private persons or entities to construct or lease facilities
at a state juvenile correctional facility, or at another agreed
location, for manufacturing and processing goods or for any other
business, commercial or agricultural enterprise.
(b) In connection with any agreement made under subsection (a)
of this section, the director may lease land and improvements on
the grounds of a juvenile correctional facility for use by the
private party to the agreement. Any such lease shall be for a term
of not more than twenty years and may contain options for renewal.
§25-7-16. Agreement between director and private person for
manufacturing pursuant to Prison Industry Enhancement (PIE)
Certification Program; wages; resident participation on
voluntary basis; workers' compensation and unemployment
compensation
.
(a) The Director of the Division of Juvenile Services and a
private person or entity may enter into an agreement to establish
a program for residents to manufacture articles and products
pursuant to the federal Prison Industry Enhancement (PIE)
Certification Program. The agreement shall include the following:
(1) That a participating resident be paid at a rate not less
than that paid for similar work in the same locality's private sector, including applicable wage increases for overtime work;
(2) That a resident's work or participation in a PIE
certification program shall be only on a voluntary basis and only
after the resident has been informed of the conditions of
participation;
(3) That, in the discretion of the director or the director's
designee, any resident may be removed from or refused participation
in the PIE certification program;
(4) That the agreement will not result in the displacement of
civilian workers; and
(5) That the private person or entity shall provide for
workers' compensation insurance, or equivalent coverage, to
residents participating in the PIE certification program.
(b) The provisions of this section shall not apply to
correctional industry service contracts provided for in section
four of this article or to operations authorized by section three
of this article that are restricted from sale in the open market.
(c) A commercial or agricultural enterprise established under
this chapter is a private enterprise subject to federal and state
laws governing the operation of similar enterprises.
(d) The earnings of a resident participating in a PIE
certification program under this article shall be deposited in the
Resident Trust Account with the Division of Juvenile Services. The
earnings shall be paid to the resident after withholding of state,
federal and local taxes, and after other deductions provided for in
this chapter. The expenses of room and board, as fixed by the director and the budget agency for facilities operated by the
director or, if the resident is housed in a facility not operated
by the director, the amount paid by the Division of Juvenile
Services to the operator of the facility or other appropriate
authority for room and board, and other incidentals as established
by agreement between the Division of Juvenile Services and the
appropriate authority, shall be deducted: Provided, That the
director shall adopt policies and procedures for the additional
deduction from a resident's earnings of not less than five percent
nor more than twenty percent, to be paid into the Crime Victims
Compensation Fund created by article two-a, chapter fourteen of
this code. Total deductions shall not exceed eighty percent of the
resident's gross earnings. Earnings deposited by the director,
with accrued interest, shall be paid to the resident no later than
at the resident's discharge or release on parole.
When special circumstances warrant, or for just cause, the
director may waive room and board charges by a facility operated by
the Division of Juvenile Services or, if the resident is housed in
a facility not operated by the Division of Juvenile Services,
authorize payment of room and board charges from other available
funds.
(e) Spousal support or child support shall be deducted from a
resident's earnings as directed by the resident or by court order.
If the resident's dependents are receiving Temporary Assistance for
Needy Families (TANF), the disbursements shall be made to the
Bureau for Child Support Enforcement or any other state's public assistance agency.