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 Department of Justice Bureau of Prisons 28 CFR Part 541
[BOP-1083-F]
RIN 1120-AA78
 AGENCY: Bureau of Prisons, Justice.
 ACTION: Final Rule.
 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 
                    ( print 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 § 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. § 541.13
 2.In § 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. § 541.13
 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**( print 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