[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Rules and Regulations]
[Pages 59724-59727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25729]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 541

[BOP-1083-F]
RIN 1120-AA78


Inmate Discipline: Prohibited Acts

AGENCY: Bureau of Prisons, Justice.

[[Page 59725]]


ACTION: Final Rule.

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SUMMARY: In this document the Bureau of Prisons amends its regulations 
on inmate discipline regarding violations of the telephone and smoking 
policies. The amendment establishes a greatest severity category 
prohibited act for use of the telephone to further criminal activity 
and a high severity and moderate category prohibited act for use of the 
telephone for abuses other than criminal activity. Other minor 
telephone infractions remain covered by the existing low moderate 
severity level category prohibited act. The amendment also elevates 
violations of the smoking policy to a moderate category prohibited act. 
The amendment is intended to address the seriousness of certain types 
of telephone abuse and deter criminal activity and protect the security 
and good order of the institution. The amendment is also intended to 
promote a clean air environment and to protect the health and safety of 
staff and inmates.

EFFECTIVE DATE: November 6, 2000.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
HOLC Room 739, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons (Bureau) finalizes 
this amendment to its regulations in 28 CFR part 541, subpart B on 
inmate discipline regarding misuse of the telephone and smoking where 
prohibited. We published the proposed rule in the Federal Register on 
February 25, 1999 (64 FR 9432). We received comments from five 
respondents, all current federal inmates.
    One commenter believes the current severity level for smoking where 
prohibited is adequate and does not believe elevating the severity 
level is necessary. The commenter believes the Bureau did not provide 
an adequate explanation supporting an increase in the severity level 
for smoking where prohibited. This commenter also states that nicotine 
addiction should be recognized as a serious medical condition requiring 
treatment and therapy and that smoking cessation programs and nicotine 
patches should be offered to assist those inmates who wish to quit 
smoking instead of elevating the severity level of the offense.
    In a separate rulemaking, we proposed revisions to its policy on 
smoking which limits smoking in Bureau facilities to visibly designated 
outdoor locations, unless an indoor area has been designated as a 
smoking area to be used exclusively for authorized religious activity. 
The proposed revisions also permit the Warden, with the concurrence of 
the Regional Director, not to designate smoking areas for general use. 
We believe that elevating the severity level for smoking where 
prohibited will assist in emphasizing the importance of limiting 
exposure to tobacco smoke to the designated areas. To assist those who 
wish to quit smoking, we plan to expand smoking cessation programs 
available to inmates and to make nicotine patches available at inmate 
expense through commissary purchase.
    Two commenters state the Bureau currently has the ability to detect 
improper use of the telephone, with one commenter stating that any 
criminal activity taking place on the telephone should be punished in 
the court system. The purpose of the amendment is to address the 
seriousness of inmate use of the telephone to further criminal activity 
and other serious abuses of the telephone privilege which could 
threaten the security of the institution or public. Upgrading 
administrative sanctions for various forms of telephone abuse does not 
preclude subsequent criminal prosecution.
    Two commenters believe that the current severity level for misuse 
of the telephone is sufficient in that an inmate may be charged in 
terms of greater severity according to the nature of the unauthorized 
use. The existing low moderate severity level prohibited act concerning 
unauthorized use of the telephone does not adequately address the more 
serious problem of inmates engaging in or continuing criminal activity 
and other serious abuses of their telephone privileges. Since the 
current policy was implemented, there have been significant 
technological advances in telephone communication capability which 
afford inmates with the opportunity to circumvent telephone regulations 
without staff knowledge. Also, the sanctions available under the 
existing low severity prohibited act are simply too low to deter 
inmates from abusing their telephone privileges. Establishing a 
greatest severity category and high severity category for criminal use 
of the telephone and other serious abuses of telephone privileges 
offers staff more significant sanctions which the Bureau believes will 
act as a deterrent. The Bureau's goal is to ensure that inmates, once 
incarcerated, do not use telephones to continue criminal activity. As 
noted below, the Bureau has chosen to add a moderate category 
prohibited act covering some of the abuses listed in the high category 
prohibited act in order to give staff flexibility in assessing the 
seriousness of the violations.
    Four commenters challenge the raising in severity level for three-
way calls, call forwarding, and emergency telephone calls via another 
inmate's PIN number. One commenter states that because there is no 
``criminal intent'' these types of calls should only be classified as 
minor offenses. Third-party calling, conference calling, possession 
and/or use of another inmate's PIN number are methods used by inmates 
to attempt to avoid the Bureau's telephone monitoring detection devices 
and can be a means to engage in further criminal activity and other 
more serious abuses of the telephone. Current telephone regulations 
prohibit an inmate from possessing another inmate's telephone access 
code number. Third party billing and electronic transfer of a call to a 
third party are also prohibited. We acknowledge that there may be 
differences in the seriousness of these violations. Accordingly, in 
this final rule, we add a moderate category prohibited act for such 
abuses in order to give staff flexibility in assessing the seriousness 
of the violations.
    Two of these commenters suggest that inmates resort to conference 
calls and third-party calls in order to reach family members who have 
been taken to a hospital or in order to reach attorneys or court 
officials. The telephone regulations provide that the Warden may allow 
a call to be made under compelling circumstances such as when an inmate 
has lost contact with his family or has a family emergency. Unit staff 
are available to assist an inmate in making a telephone call during an 
emergency. Inmates may also communicate with family and friends through 
normal correspondence procedures. Requests for unmonitored telephone 
calls to attorneys are always handled separately through staff in order 
to confirm the legal nature of the telephone call.
    The current low moderate severity level prohibited act remains for 
minor telephone infractions such as talking beyond the 15-minute time 
period and using the telephone in an unauthorized area. For 
administrative management reasons, the Bureau is separating 
unauthorized use of mail from unauthorized use of the telephone in its 
low moderate severity level. Unauthorized use of mail remains in Code 
406 while unauthorized use of the telephone is now in new Code 497.
    We also received a tort claim from one inmate alleging the 
regulations are

[[Page 59726]]

vague. While this claim is being processed under the procedures for 
tort claims, we are also treating it as a comment on the proposed 
regulation. This commenter claims, among other things, that the 
prohibited act of ``Killing'' (Code 100) is ``unconstitutionally vague, 
ambiguous and imprecise, because the rule provides no definition of 
what behavior and conduct constitutes ``Killing.'' A person could be 
charged with a violation of the rule arbitrarily for simply killing 
time.'' The commenter, however, does not specifically address the 
proposed changes to the telephone and smoking prohibited acts. We are 
concerned with the clarity of our regulations and believe the wording 
of the prohibited acts is sufficiently clear. Even so, in keeping with 
plain language initiatives, we intend to issue a complete ``Plain 
Language'' revision of the discipline policy for public comment.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule pertains to the 
correctional management of offenders committed to the custody of the 
Attorney General or the Director of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec. 804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Sarah Qureshi, Rules Unit, 
Office of General Counsel, Bureau of Prisons, HOLC Room 754, 320 First 
Street, NW., Washington, DC 20534, 202-514-6655.
    Members of the public may submit comments concerning this rule by 
writing to the previously cited address. These comments will be 
considered but will receive no response in the Federal Register.

List of Subjects in 28 CFR Part 541

    Prisoners.

Kathleen Hawk Sawyer,
Director, Bureau of Prisons.

    Accordingly, pursuant to the rulemaking authority vested in the 
Attorney General in 5 U.S.C. 552(a) and delegated to the Director, 
Bureau of Prisons in 28 CFR 0.96(p), we amend part 541 in subchapter C 
of 28 CFR, chapter V as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

    1. The authority citation for 28 CFR part 541 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 4161-4166 (Repealed as to offenses committed on 
or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as 
to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 
CFR 0.95-0.99.


Sec. 541.13  [Amended]

    2. In Sec. 541.13, Table 3 is amended by:
    A. Adding a new code 197 under the greatest category prohibited 
act,
    B. Adding a new code 297 under the high category prohibited act,
    C. Adding new codes 332 and 397 under the moderate category 
prohibited act,
    D. Revising the word ``belong'' in code 400 as ``belonging'', and
    E. Revising codes 403 and 406 and adding code 497 under the low 
moderate category prohibited act.


Sec. 541.13  Prohibited acts and disciplinary severity scale.

        TABLE 3.--Prohibited Acts and Disciplinary Severity Scale
------------------------------------------------------------------------
           Code                 Prohibited acts           Sanctions
------------------------------------------------------------------------
                            GREATEST CATEGORY
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
197......................  Use of the telephone to
                            further criminal
                            activity.
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
                              HIGH CATEGORY
------------------------------------------------------------------------
 

[[Page 59727]]

 
*                  *                  *                  *
                  *                  *                  *
297......................  Use of the telephone for
                            abuses other than
                            criminal activity
                            (e.g., circumventing
                            telephone monitoring
                            procedures, possession
                            and/or use of another
                            inmate's PIN number;
                            third-party calling;
                            third-party billing;
                            using credit card
                            numbers to place
                            telephone calls,
                            conference calling;
                            talking in code).
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
                            MODERATE CATEGORY
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
332......................  Smoking where prohibited
 
*                  *                  *                  *
                  *                  *                  *
397......................  Use of the telephone for
                            abuses other than
                            criminal activity
                            (e.g., conference
                            calling, possession and/
                            or use of another
                            inmate's PIN number,
                            three-way calling,
                            providing false
                            information for
                            preparation of a
                            telephone list).
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
                          LOW MODERATE CATEGORY
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
403......................  (Not to be used)........
 
*                  *                  *                  *
                  *                  *                  *
406......................  Unauthorized use of mail
                            (Restriction, or loss
                            for a specific period
                            of time, of these
                            privileges may often be
                            an appropriate sanction
                            G) (May be categorized
                            and charged in terms of
                            greater severity,
                            according to the nature
                            of the unauthorized
                            use; e.g., the mail is
                            used for planning,
                            facilitating,
                            committing an armed
                            assault on the
                            institution's secure
                            perimeter, would be
                            charged as a Code 101
                            Assault).
 
*                  *                  *                  *
                  *                  *                  *
497......................  Use of the telephone for
                            abuses other than
                            criminal activity
                            (e.g., exceeding the 15-
                            minute time limit for
                            telephone calls; using
                            the telephone in an
                            unauthorized area;
                            placing of an
                            unauthorized individual
                            on the telephone list).
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------

[FR Doc. 00-25729 Filed 10-5-00; 8:45 am]
BILLING CODE 4410-05-P