Construction

U.S. Department of Transportation Federal Highway Administration

MEMORANDUM

This is in response to your April 29, 1996 inquiry relative to the South Dakota Department of Transportation's (SDDOT) approved Community Service Program for Minimum Risk and Low/Medium Risk Inmates. The SDDOT program is a work release program that allows inmates to work in the community while providing low cost labor to government and nonprofit organizations. It is SDDOT's intent to utilize inmate labor on transportation enhancement projects which are outside the right-of-way of a Federal-aid highway.

Convict Labor

Section 114(b)(1) of title 23, United States Code (USC) provides in part:

Convict labor shall not be used in construction of highways or portions of highways located on a Federal-aid system unless it is labor performed by convicts who are on parole, supervised release, or probation. (Emphasis added).

Similar language is contained in 23 CFR ' 635.117(a):

No construction work shall be performed by convict labor at the work site or within the limits of any Federal-aid highway construction project from the time of award of the contract or the start of work on force account until final acceptance by the SHA unless it is work performed by convicts who are on parole, supervised release, or probation. (Emphasis added).

The convict labor prohibition was addressed in a 1982 highway legislation reauthorization hearing. This statement was made by the American Road and Transportation Builders Association:

We support the original intent of the statute that the Federal-aid highway program should utilize private enterprise to the fullest extent possible. Committee on Environment and Public Work, S-2315, pp. 24-25,118 (April 21, 1982).

While SDDOT deems its program "supervised release," the question presented is whether the program falls within the statutory and regulatory exceptions. Under the Sentencing Reform Act of 1984 [Pub. L. No. 98-473, 98 Stat. 1999, Oct. 12, 1984], Congress provided the Federal courts with a new sentencing option called "supervised release" The law provides that the court, in imposing a sentence to a term of imprisonment for a felony or misdemeanor, may include as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment. See 18 U.S.C. ' 3583(a) (emphasis added). The legislative history is helpful.

In effect, the term of supervised release provided by the bill, takes the place of parole supervision under current law... [T]he term of supervised release is very similar to a term of probation, except that it follows a term of imprisonment and may not be imposed for purposes of punishment or incapacitation since those purposes will have been served to the extent necessary by the term of imprisonment. U.S. Code Congressional & Administrative News, 1984, p. 3308.

Hence, while the Federal sentencing guidelines replaced the term "parole" with the term "supervised release," the definition remained constant. Both terms refer to a status after the term of imprisonment. "Supervised release" does not mean convicts on inmate status doing supervised work either inside or outside the walls of the incarcerating facility. The fact that the term "parole" remained in both 23 U.S.C. ' 114(b)(1) and 23 CFR ' 635.117(a) is a recognition of the parole system in state penal codes; to-wit a form of supervision after imprisonment.

The SDDOT program is administered by South Dakota's Department of Corrections. It envisions inmates, presently incarcerated, working in the community with a Host Agency and Community Service Director. Although the work occurs outside correctional walls and is named "supervised release," it is not a program of supervision after imprisonment. Hence, SDDOT's program does not fall within the statutory exceptions for convict labor. Inmates in SDDOT's "supervised release" program may not work on projects where convict labor is prohibited.

Scope of Convict Labor Prohibition

The convict labor prohibition applies only to Federal-aid highway construction projects. Section 101 of title 23 U.S.C. defines "Federal-aid highways" as:

[H]ighways eligible for assistance under this chapter [Chapter 1 of title 23, U.S.C.] other than highways classified as local roads or rural minor collectors.

SDDOT intends to utilize its convict labor program on transportation enhancement projects. Specifically, SDDOT intends to utilize its convict labor program only on transportation enhancement projects outside the right-of-way of a Federal-aid highway. Section 101 of title 23, U.S.C. defines "transportation enhancement activities" in part as follows:

[W]ith respect to any project or the area to be served by the project, provision of facilities for pedestrians and bicycles, acquisition of scenic easements and scenic or historic sites, scenic or historic highway programs, landscaping and other scenic beautification, historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals), preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails), control and removal of outdoor advertising, archaeological planning and research, and mitigation of water pollution due to highway runoff.

Although Federal funds may participate in a particular transportation enhancement project, it does not follow that all enhancement projects are thereby Federal-aid highway construction projects and hence subject to the convict labor prohibition. SDDOT has identified the following projects for use of convict labor:

1. George S. Mickelson Rails to Trails project.
2. Fort Sisseton State Park Restoration project.
3. Adams Nature Area Preservation project.
4. Any other appropriate transportation enhancement projects which are located outside the right-of-way of a Federal-aid highway.

In a July 28, 1994 memorandum (attached), the FHWA addressed the applicability of Davis-Bacon wage rates to transportation enhancement projects. The Davis-Bacon predetermined minimum wage applies to all covered workers on Federal-aid construction projects exceeding $2,000 that are located on a Federal-aid highway. The Davis-Bacon scope is similar to the convict labor prohibition; both apply to projects located on a Federal-aid highway. The 1994 memorandum concluded that the applicability of Davis-Bacon to a transportation enhancement project is dependent on the relationship or linkage of the project to a Federal-aid highway. If the transportation enhancement project would not exist but for the Federal-aid highway and exceeds $2,000, then Davis-Bacon requirements apply. In this context, "proximity and linkage" are the defining terms. Davis-Bacon wage rates are required if the transportation enhancement project is dependent upon the Federal-aid highway project for its existence.

On the other hand, if the enhancement project is not "linked" to a particular Federal-aid highway and is eligible based solely on function, then Davis-Bacon requirements do not apply. In the latter category, the memorandum cites as examples projects such as independent bike paths and the restoration of a railroad station. Finally, Davis-Bacon applies to all projects greater than $2,000 that are physically located within the existing Federal-aid highway right-of-way, regardless of transportation enhancement characteristics.

The above analogy can be used relative to the SDDOT convict labor program. The convict labor prohibition applies if (1) the particular transportation enhancement project is physically located within the existing right-of-way of a Federal-aid highway or (2) if the enhancement project is outside the existing Federal-aid highway right-of-way but is linked to the Federal-aid highway by either proximity or impact. On the other hand, if the enhancement project is not linked to any particular Federal-aid highway and is eligible based solely on function, the convict labor prohibition does not apply and the State of South Dakota is eligible to use inmates as part of its Community Service Program to work on the project. A cost-effectiveness finding under 23 CFR ' 635.104(b) would also be required.

If you concur that the State's proposed projects meet the criteria as set forth above, you may proceed.

This response has been coordinated with headquarters' Office of Engineering and Office of Chief Counsel. If you need further assistance please contact Bill Hakala at 303-969-5772, extension 339 or Vivian Philbin at 303-969-5772 extension 316.

/s/ original signed by
Vincent F. Schimmoller