Inmate Discipline: Prohibited Acts

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 541

[BOP-1083-P]

RIN 1120-AA78

Inmate Discipline: Prohibited Acts

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document the Bureau of Prisons is proposing to amend

its regulations on inmate discipline respecting violations of the

telephone and smoking policies. The existing prohibited act concerning

unauthorized use of the telephone is broadly stated and does not

address an inmate's use of the telephone to further criminal activity.

The Bureau therefore is establishing a greatest severity category

prohibited act for use of the telephone to further criminal activity

and a high severity category for use of the telephone for abuses other

than criminal activity. Other minor telephone infractions remain

covered by the existing low severity category prohibited act. The

intended effect of these revisions is 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 existing

low category prohibited act for violations of the smoking policy is

elevated to a moderate category prohibited act. The intended effect of

this revision is to assist the Bureau in achieving its goal of a smoke

free environment.

DATES: Comments due by April 26, 1999.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons,

HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is proposing to amend

its regulations on inmate discipline (28 CFR part 541, subpart B). A

final rule on this subject was published in the Federal Register on

January 5, 1988 (53 FR 197), and was amended on October 17, 1988 (53 FR

40686), September 22, 1989 (54 FR 38987 and 54 FR 39095), July 21, 1993

(58 FR 39095), September 26, 1997 (62 FR 50788). The Bureau of Prisons

is also proposing to amend its regulations on smoking. A final rule on

this subject was published in the Federal Register on July 6, 1994 (59

FR 34742)

The existing low severity prohibited act concerning unauthorized

use of the telephone does not adequately address the more serious

problem of inmates engaging in or continuing criminal activity through

abuse of their telephone privileges. The Bureau's goal is to ensure

that inmates, once incarcerated, do not use telephones to continue

criminal activity. Therefore, the Bureau is proposing to establish a

greatest severity prohibited act for use of the telephone to further

criminal activity, and a high severity prohibited act for use of the

telephone for abuses other than criminal activity. Examples of what the

Bureau considers a violation of a high severity prohibited act are

third-party calls, third-party billing; possession of and/or use of

another inmate's PIN number, and talking in code. The current low

severity prohibited act remains for minor

[[Page 9433]]

telephone infractions such as talking beyond the 15-minute time period

and using the telephone in an unauthorized area.

The health risks associated with tobacco smoke and passive

inhalation of second-hand smoke by nonsmokers is well established by

medical and public health authorities. Currently, smoking is permitted

in designated outdoor areas and certain indoor designated areas. We are

elevating the seriousness of violations of the smoking policy to

emphasize the importance of limiting exposure to tobacco smoke to the

designated areas.

Interested persons may participate in this proposed rulemaking by

submitting data, views, or arguments in writing to the Rules Unit,

Office of General Counsel, Bureau of Prisons, 320 First Street, NW.,

HOLC Room 754, Washington, DC 20534. Comments received during the

comment period will be considered before final action is taken.

Comments received after the expiration of the comment period will be

considered to the extent practicable. All comments received remain on

file for public inspection at the above address. The proposed rule may

be changed in light of the comments received. No oral hearings are

contemplated.

Executive Order 12866

This rule falls within a category of actions that the Office of

Management and Budget (OMB) has determined not to constitute

``significant regulatory actions'' under section 3(f) of Executive

Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 12612

This regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Regulatory Flexibility Act

The Director of the Bureau of Prisons, in accordance with the

Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this

regulation and by approving it certifies that this regulation will not

have a significant economic impact upon a substantial number of small

entities for the following reasons: This rule pertains to the

correctional management of offenders committed to the custody of the

Attorney General or the Director of the Bureau of Prisons, and its

economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

Plain Language Instructions

We try to write clearly. If you can suggest how to improve the

clarity of these regulations, call or write Roy Nanovic, Rules Unit,

Office of General Counsel, Bureau of Prisons, HOLC Room 754, 320 First

Street, NW., Washington, DC 20534, 202-514-6655.

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), part 541 in subchapter C of 28

CFR, chapter V is proposed to be amended as set forth below.

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.

2. In Sec. 541.13, Table 3 is amended by adding a new code 197

prohibited act under the greatest category, adding a new code 297 under

the high category prohibited act, adding a new code 332 moderate

category prohibited act, revising code 403 under the low moderate

category prohibited act, and revising code 406 under the low moderate

category prohibited act.

Sec. 541.13 Prohibited acts and disciplinary severity scale.

* * * * *

Table 3.--Prohibited Acts and Disciplinary Severity Scale

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Code Prohibited acts Sanctions

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Greatest Category

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* * * * * *

*

197..................................... Use of the telephone to further criminal

activity.

* * * * * *

*

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High Category

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[[Page 9434]]

* * * * * *

*

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).

* * * * * *

*

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Moderate Category

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* * * * * *

*

332..................................... Smoking where prohibited..................

* * * * * *

*

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Low Moderate Category

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* * * * * *

*

403..................................... (Not to be used)..........................

* * * * * *

*

406..................................... Unauthorized use of mail or telephone

(e.g., exceeding the 15-minute time limit

for telephone calls; using the telephone

in an unauthorized area; placing of an

unauthorized individual on telephone

list) (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).

* * * * * *

*

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[FR Doc. 99-4735 Filed 2-24-99; 8:45 am]

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