Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes, 6455-6470 [2024-01088]

Agencies

• Department of Justice
• Bureau of Prisons

[Federal Register Volume 89, Number 22 (Thursday, February 1, 2024)]
[Proposed Rules]
[Pages 6455-6470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01088]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 541

[Docket No. BOP-1171-P]
RIN 1120-AB71


Inmate Discipline Program: Disciplinary Segregation and 
Prohibited Act Code Changes

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
amend, clarify, and streamline inmate discipline regulations to conform 
with current practice; to adopt recommendations of the January 2016 
U.S. Department of Justice Report and Recommendations Concerning the 
Use of Restrictive Housing to reduce the potential length of the 
disciplinary segregation sanction; and to amend and clarify the list of 
prohibited act codes.

DATES: Electronic comments must be submitted, and written comments must 
be postmarked, no later than 11:59 p.m. on April 1, 2024.

ADDRESSES: Please submit electronic comments through the 
regulations.gov website, or mail written comments to the Legislative & 
Correctional Issues Branch, Office of General Counsel, Bureau of 
Prisons, 320 First Street NW, Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant 
General Counsel/Rules Administrator, Federal Bureau of Prisons, at the 
address above or at (202) 353-4885.

SUPPLEMENTARY INFORMATION: Please note that all comments received are 
considered part of the public record and made available for public 
inspection online at www.regulations.gov. If you want to submit 
personal identifying information (such as your name, address, etc.) as 
part of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You must also locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
contains so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted to 
www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

I. Background

    In this document, the Bureau of Prisons (Bureau) proposes to amend, 
clarify, and streamline inmate discipline regulations in 28 CFR part 
541 to conform with current practice; to adopt recommendations of the 
U.S. Department of Justice Report and Recommendations Concerning the 
Use of Restrictive Housing (January 2016) \1\ (hereinafter ``Report'') 
to reduce the potential length of the disciplinary

[[Page 6456]]

segregation sanction; and to amend and clarify the list of prohibited 
act codes.
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    \1\ U.S. Department of Justice Report & Recommendation 
Concerning the Use of Restrictive Housing, U.S. Department of 
Justice, Office of Justice Programs (January 2016), available at 
https://www.ojp.gov/ncjrs/virtual-library/abstracts/us-department-justice-report-and-recommendations-concerning-use.
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A. Clarifying Changes

    Section 541.1 currently indicates that the purpose of the subpart 
is to describe the inmate discipline program. We first propose to add 
introductory language clarifying that the subpart does not create a 
private right of action or otherwise permit civil claims for alleged 
violations. We next propose to make non-substantive alterations in this 
section to clarify that inmate discipline helps ensure the safety, 
security, and orderly operation of correctional facilities as well as 
the protection of the public by sanctioning inmates who commit 
prohibited acts. We also retain language indicating that the subpart 
describes the inmate discipline program and ensures that sanctions will 
not be imposed in a capricious or retaliatory manner. Finally, we 
reiterate that, consistent with the Rehabilitation Act of 1973, for all 
discipline cases, the Unit Discipline Committee or Disciplinary Hearing 
Officer shall consider the individual inmate's mental health and 
disabilities when determining the appropriateness of sanctions.
    Section 541.2 states that the Bureau's inmate discipline program 
applies to sentenced and unsentenced inmates in Bureau custody and 
those designated to any prison, institution, or facility in which 
persons are held in custody by direction of, or under an agreement 
with, the Bureau of Prisons. Although this language implicitly includes 
inmates designated to Bureau contract facilities, the Bureau proposes 
to make this inclusion explicit.
    We propose to alter this section to indicate that, for the purposes 
of these regulations, ``staff'' indicates staff authorized by the 
Bureau to implement the inmate discipline program as described in this 
subpart, and that the inmate discipline program applies to sentenced 
and unsentenced inmates in Bureau custody or in any facility, including 
community confinement facilities, in which persons are held in custody 
by the direction of, or under an agreement with, the Bureau.
    Section 541.3 describes prohibited acts and available sanctions. 
The current regulation divides prohibited acts into four separate 
categories based on severity: Greatest; High; Moderate; and Low. We now 
propose to eliminate the ``Low'' category to eliminate prohibited act 
codes that were underutilized. The revised list of prohibited acts is 
explained in more detail below.

B. Prohibited Act Codes

    The Bureau proposes to make several changes to 28 CFR 541.3 Table 1 
to Sec.  541.3--Prohibited Acts and Available Sanctions, as follows:
    Clarification of code 101, regarding assaulting any person, or an 
armed assault on the institution's secure perimeter (to be used only 
when serious physical injury has been attempted or accomplished).
    We propose to clarify the language of this code to indicate that 
the prohibited conduct is the attempted or accomplished assault and/or 
battery of any person involving serious physical injury, or an armed 
assault on the institution's secure perimeter. No changes will be made 
to the substance or application of this code.
    Expansion of code 102, regarding escape.
    We propose to expand this code, which currently includes ``escape 
from escort; escape from any secure or non-secure institution, 
including community confinement; escape from unescorted community 
program or activity;'' and ``escape from outside a secure 
institution,'' to clarify that this code prohibits any unauthorized 
departure from custody, including, but not limited to, unauthorized 
departure from the buildings, lands, property or perimeter (inside or 
outside) of any secure or non-secure facility; unauthorized departure 
from community confinement, work detail, program or activity (whether 
escorted or unescorted); and unauthorized departure from any authorized 
location regardless of electronic monitoring devices.
    Escape from a work detail is currently included in prohibited act 
code 200, which we now propose to delete, as the language in that code 
will be encompassed by revised code 102. In the July 26, 2005, proposed 
rule on the subject, the Bureau explained that code 200 was created to 
allow for a less severe sanction than that imposed for any other type 
of escape if an inmate voluntarily chooses to minimize his prohibited 
act by returning (70 FR 43093). However, in the intervening years, the 
Bureau has found that allowing for a less severe sanction for escapes 
with voluntary return has resulted in greater incidences of inmate 
escapes and attempts to escape in order to procure contraband to 
introduce into Bureau facilities.
    Therefore, to deter any unauthorized departure from Bureau custody, 
regardless of whether the inmate chooses to voluntarily return, and to 
emphasize the severity of the prohibited act, we propose to delete code 
200 and include escapes from work details within code 102 in the 
Greatest Severity Level.
    Clarification of code 103, regarding setting a fire.
    We propose to clarify the language of this code to prohibit causing 
ignition or combustion (including, but not limited to, fire or 
explosion) that either threatens serious bodily harm or is done in 
furtherance of another Greatest Severity Level prohibited act. No 
changes will be made to the substance or application of this code.
    Clarification of code 104, regarding possession, manufacture, or 
introduction of a gun, firearm, weapon, sharpened instrument, knife, 
dangerous chemical, explosive, ammunition, or any instrument that has 
been modified in order to be used as a weapon.
    We propose to clarify the language of this code to prohibit 
possession, manufacture, or introduction of any item that has been 
weaponized. Such an item can include firearms, sharpened instruments, 
unauthorized blades, explosives, ammunition, unauthorized chemicals, or 
any other object that has been modified in order to be used as a 
weapon.
    Combining codes 105 and 106, regarding rioting and encouraging 
others to riot.
    We propose to combine code 105, rioting, and 106, encouraging 
others to riot, into one code 105 that clarifies the prohibited act as 
rioting; promoting rioting; or encouraging others to participate in a 
riot. In this code, we also define the term ``riot'' as a disturbance 
with two or more people that involves violence or threats of violence 
or damage to government property, for the purpose of preventing or 
coercing official action.
    Expansion of code 108, regarding hazardous tools.
    We propose to expand this code, which currently includes 
``possession, manufacture, introduction or loss'' of hazardous tools, 
to also include ``use'' of a hazardous tool. We also propose to include 
in the list of hazardous tool examples those ``items necessary in the 
use of these devices.'' Making these changes would allow for discipline 
if telltale evidence of such items as a cellphone, electronic device, 
or escape paraphernalia were not found, but items which could only be 
used with prohibited items are found to have been used.
    Separation of codes 110, 111, 112, 113, regarding drugs, narcotics, 
and marijuana, from those regarding alcohol and intoxicants.
    We propose to make a technical amendment involving prohibited act

[[Page 6457]]

codes 110, 111, 112, and 113, all of which currently cover the 
prohibited acts of refusing to be tested for, introducing, or making, 
using, or possessing drugs or alcohol/intoxicants not prescribed by 
medical staff. Having one set of prohibited acts that relates to both 
drugs and alcohol/intoxicants together has made it difficult for the 
Bureau to effectively track the number of incident reports related 
solely to drugs or solely to alcohol/intoxicants.
    We therefore propose to separate the one set of prohibited 
activities into two: one group of codes relating to drugs, and the 
other to alcohol/intoxicants. To accomplish this, we created four new 
prohibited act codes: 116, 117, 118, and 119. Codes 110 through 113 
will now relate solely to drugs, and codes 116 through 119 will repeat 
the activities described in 110 through 113, but with regard to 
alcohol/intoxicants. The wording of the codes has not otherwise 
changed.
    Combination of codes 114, 205, 206, 229, and 300, regarding non-
consensual, sexually explicit conduct up to and including assault.
    We propose to combine codes 114, 205, 206, 229, and 300 to clarify 
that the behavior we seek to prohibit encompasses additional non-
consensual, sexually explicit conduct, including ``sexual assault.'' 
Instead, we propose to clarify that code 114 prohibits sexually 
explicit conduct involving force, threat of force, or threat of harm; 
or sexually explicit conduct without consent or through coercion; or 
attempts thereof. Revised code 114 would encompass sexually explicit 
conduct that staff have observed and instructed an inmate to cease.
    In this code, we further define the term ``sexually explicit 
conduct'' as it is described in 18 U.S.C. 2256(2)(A): verbal or written 
sexual proposals or threats; actual or simulated sexual intercourse, 
including but not limited to genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or opposite 
sex; bestiality; masturbation; sadistic or masochistic abuse; or 
lascivious exhibition of the anus, genitals, or pubic area of any 
person.
    There has been a general increase over several years in the 
occurrence of these prohibited acts, particularly as aimed at staff. 
This behavior, especially towards staff, rises to the greatest level of 
severity because it results in the existence of a sexually hostile work 
environment for staff. Accordingly, we seek to increase the severity 
level for these behaviors to underscore the level of seriousness of 
this conduct, to deter this type of activity, and to promote a healthy 
work environment for Bureau staff.
    As conforming amendments, the Bureau proposes to delete codes 205 
(engaging in sexual acts), 206 (making sexual proposals or threats to 
another), 229 (sexual assault of any person, involving non-consensual 
touching without force or threat of force), and 300 (indecent exposure) 
because the conduct those codes prohibit would be encompassed under 
revised code 114.
    Addition of code 194, regarding unauthorized use of social media 
and fund transfer services.
    We propose to add a Greatest Severity Level prohibited act code 
(194) for accessing, using, or maintaining social media accounts 
(including, but not limited to the following: Facebook, Twitter, 
Instagram, Snapchat, TikTok, etc. or any successor), or directing 
others to establish or maintain social media accounts on the inmate's 
behalf for the purpose of committing or aiding in the commission of a 
criminal act; of committing or aiding in the commission of any Greatest 
category prohibited act; or of circumventing authorized communications 
monitoring for the purpose of committing or aiding in the commission of 
a criminal act or of any Greatest category prohibited act. This code 
also prohibits inmates' use of fund transfer services such as CashApp, 
as explained in more detail below.
    In determining whether the Bureau can restrict inmate access to 
social media accounts, the appropriate standard to consider is whether 
such a restriction is reasonably related to legitimate penological 
interests. See, e.g., Aguiar v. Recktenwald, No. 3:13-2616, 2015 WL 
5829727, at *8 (M.D. Pa. Sept. 30, 2015) (citing Solan v. Zickefoose, 
530 F. App'x 109, 110 (3d Cir. 2013), cert. dismissed, 134 S. Ct. 1499 
(2014), reconsideration denied, 134 S. Ct. 1927 (2014) (quoting Turner 
v. Safley, 482 U.S. 78, 89 (1987)). In Aguiar, the court articulated 
the Turner factors demonstrated by the Bureau's policy of restricting 
social media use by inmates, as follows:

    The first Turner factor requires a valid, rational connection 
between the prison regulation and the legitimate governmental 
interest articulated to justify it. Here, the record supports a 
rational connection between controlling indirect communications with 
outsiders through effectuating the deactivation of inmates' Facebook 
accounts, and the articulated goal of promoting the security of the 
prison institution and the protection of the community . . . . The 
policy . . . of restricting inmates from accessing social media 
platforms as a means to communicate with unauthorized contacts, ``is 
content neutral and does not work to exclude any particular message 
or expression.'' McIntyre v. Bayer, 243 F.3d 548 (9th Cir. 2000) . . 
. .
    If the prison facility acquiesced upon discovering that an 
inmate's Facebook account was being operated to convey content from 
the inmate himself, it would open the door to inmates communicating 
with a virtually unlimited number of individuals. Those Facebook 
contacts could include other confined inmates, gang members with 
whom the inmate may be affiliated with and prohibited from 
contacting, or perhaps more disturbingly victims of the inmate's 
crimes or other individuals who may be subject to deliberate 
intimidation by the inmate (or by the inmate's contact who controls 
the account, harassing the victim in effective anonymity). The 
uncontroverted evidence indicates that administrators have 
determined, in their sound discretion, that permitting inmates to 
maintain Facebook accounts through third parties would jeopardize 
the security and order of the facility and would circumvent 
established policies regulating communication that enhance prison 
security. . . .
    With regard to the second factor, Aguiar's First Amendment right 
to communication or association has not been impermissibly denied, 
as the challenged policy leaves ample alternatives to communicate 
with friends and family. Specifically, Aguiar retains the use of 
other methods of communication with outsiders through prison 
visitation, postal mail, telephone, and TRULINCS messaging. . . . 
Specifically, the First Amendment does not require ``that the 
government provide telephones, videoconferencing, email, or any of 
the other marvelous forms of technology that allow instantaneous 
communication across geographical distances; the First Amendment is 
a limit on the exercise of governmental power, not a source of 
positive obligation.'' Holloway v. Magness, No. 5:07-00088, 2011 WL 
204891, at *7 (E.D. Ark. Jan. 21, 2011).
    The third Turner factor considers the impact that the 
accommodation of the asserted constitutional right will have on 
Defendants. Here, the Court has considered the consequence of 
accommodating the asserted constitutional right on the allocation of 
prison resources generally, the other inmates, and the prison 
administration. ``When accommodation of an asserted right will have 
a significant `ripple effect' on fellow inmates or prison staff, 
courts should be particularly deferential to the informed discretion 
of corrections officials.'' Turner, 482 U.S. at 89. Permitting 
inmates to effectively curate the content posted on their Facebook 
pages through an authorized agent would impose insurmountable 
burdens on prison staff tasked with monitoring inmates' 
communications, would require incredible prison resources to 
effectively regulate, and would undermine the infrastructure of 
communication policies designed to safeguard prison operations. In 
toto, these considerations demonstrate a substantial burden on 
prison officials and resources as an impact of accommodating 
Aguiar's access to Facebook.
    The fourth Turner factor, the availability of other alternatives 
to effectuate the BOP's

[[Page 6458]]

objective, weights in favor of the BOP, as Aguiar has not offered 
any meaningful alternatives to Defendants' current arrangement of 
disclosing to Facebook inmates whose Facebook accounts are updated 
by third parties in violation of Facebook's user agreement, and more 
generally of discouraging inmates from gaining access to social 
media platforms in order to communicate with unauthorized contacts.
    In sum, the Turner factors weigh in favor of the BOP's informal 
policy of restricting inmates from maintaining social media 
platforms such as Facebook, as the decision to notify Facebook upon 
discovering an inmate with an active Facebook account does not 
impermissibly curtail an inmate's right to communicate with persons 
outside the prison. As Aguiar has not alleged the deprivation of a 
constitutional right, Defendants are entitled to qualified immunity 
with respect to these First Amendment claims.

    Aguiar v. Recktenwald, 2015 WL 5829727, at *9. In addition, several 
states currently have provisions in law or policies prohibiting 
prisoners from accessing social media. See, e.g., Ala. Code 14-11-70 
(2013); Texas Department of Criminal Justice Offender Orientation 
Handbook, Ch. 1, III. N., p. 24 (Apr. 2016); New Mexico Corrections 
Department Policy CD-044005, internet Use, page 5, M.1. (May 20, 2015); 
North Carolina Department of Public Safety, Prisons, Policy & 
Procedures, General, B.0300 Inmate Conduct Rules (y)(2) (July 10, 
2013).
    We further propose to include language necessary to enable the 
Bureau to target and eliminate inmates' use of fund transfer services 
like CashApp. When inmates use these services to send and receive 
money, Bureau staff are unable to monitor those transfers. CashApp and 
similar applications employ encryption technology that enables inmates 
to avoid detection, allowing them to use these platforms for unlawful 
purposes such as money laundering. Without the ability to closely 
monitor fund transfers using CashApp and similar applications, Bureau 
staff are unable to advise and assist other federal, state, and local 
law enforcement entities with identifying criminal or potentially 
criminal activity in which a particular inmate is engaged. Thus, 
inclusion of this language will provide us with a tool to disincentive 
an inmate's use of these fund transfer services and to hold inmates 
accountable for violating the prohibition against such use.
    Addition of code 195, regarding use of video visits to commit or 
aid in the commission of a criminal act or any other Greatest category 
prohibited act.
    We propose to add a Greatest Severity Level prohibited act code 
(195) for use of video visits to commit or aid in the commission of a 
criminal act or any other Greatest category prohibited act. The Bureau 
adds this code to account for advances in technology that have allowed 
for the use of video visiting by inmates as an alternative to 
telephonic communication and visiting room visitation. This code is 
necessary to discipline for infractions similarly to current code 196, 
``use of the mail for an illegal purpose or to commit or further a 
Greatest category prohibited act;'' and 197, ``use of the telephone for 
an illegal purpose or to commit or further a Greatest category 
prohibited act.''
    Expansion of code 196, regarding use of the mail for an illegal 
purpose.
    Current code 196 allows for discipline for use of the mail for an 
illegal purpose or to commit or further a Greatest category prohibited 
act. We propose to expand this code to include misuse of any form of 
electronic mail and messaging, including messaging through the TRULINCS 
system. The Bureau makes this addition to account for advances in 
technology that have allowed for the use of electronic mail by inmates 
as an alternative to written correspondence and telephone 
communication. This change is necessary to discipline for infractions 
similarly to current code 196, ``use of the mail for an illegal purpose 
or to commit or further a Greatest category prohibited act;'' and 197, 
``use of the telephone for an illegal purpose or to commit or further a 
Greatest category prohibited act.''
    Clarification of code 201, regarding fighting.
    We propose to modify this code to clarify that the term 
``fighting'' is defined as a hostile physical or verbal encounter 
between two or more persons. This is more descriptive than the previous 
code description, which was simply ``fighting with another person.'' No 
other changes are made in the substance or application of this code.
    Addition of code 202, regarding possession of forms used in 
fraudulent filing.
    We propose to create a new code 202 prohibiting possession of any 
forms that may be used in the fraudulent filing of Uniform Commercial 
Code (UCC) liens and prohibiting any attempt to publicly disclose the 
private information of others for unlawful purposes.
    For several years, inmates have been filing fraudulent liens 
against Bureau staff, typically alleging that a particular Bureau staff 
member is financially indebted to the inmate because of something the 
Bureau staff did or did not do. Inmates frequently file these liens 
under the purported authority of the UCC, which has been adopted by 
most states.
    Under the UCC, a creditor files a financing statement with the 
required state office. This financing statement creates a lien. To 
remove the lien, the creditor must file a formal amendment. When Bureau 
legal staff learn that a lien has been filed against a staff member, 
they file a demand letter requesting to have the lien removed. If the 
inmate refuses to remove the lien, the Bureau staff may file a document 
contesting the lien. Specifically, the UCC provides a debtor the 
opportunity to file a correction on a record that is believed to be 
inaccurately or wrongfully filed. The filing of a correction statement 
does not invalidate the original financing statement but does serve to 
alert anyone searching the records for the debtor's name that this 
financing statement is contested.
    Filing fraudulent liens or attempting to disclose the private 
information of others is prohibited by the Court Security Improvement 
Act of 2007 (Pub. L. 110-177, Jan. 7, 2008). That Act added two new 
provisions to the Federal Criminal Code: 18 U.S.C. 1521, which 
established a criminal offense for filing, attempting to file, or 
conspiring to file, a false lien or encumbrance against the real or 
personal property of a Federal Judge or Federal law enforcement 
officer; and 18 U.S.C. 119, which established a criminal offense for 
making publicly available ``restricted personal information'' about a 
covered person'' with the intent to threaten, intimidate, or incite a 
crime of violence against such person. Such information, as defined in 
that section, includes an individual's Social Security number, home 
address, home phone number, mobile phone number, personal email, or 
home fax number. The definition of ``covered persons'' in 18 U.S.C. 
119(b)(2) includes court officers, jurors, witnesses, informants, and 
Federal law enforcement officers, which includes Bureau of Prisons 
staff.
    The Bureau's current regulations explain, in 28 CFR 500.1(h), that 
contraband is material prohibited by law, regulation, or policy that 
can reasonably be expected to cause physical injury or adversely affect 
the safety, security or good order of the facility or protection of the 
public. The filing of fraudulent liens and the possession of documents 
that contain another's restricted personal information impacts the 
security and good order of Bureau facilities.
    Federal courts have upheld prohibition of UCC forms and documents 
related to UCC filings, as

[[Page 6459]]

contraband. For instance, in Edmonds v. Sobina, 296 F. App'x 214 (3d 
Cir. 2008), the court held that discipline imposed upon a federal 
inmate in unauthorized possession of UCC filing forms did not implicate 
any constitutionally protected liberty interest. 296 F. App'x 217-18. 
The court upheld the Bureau's policy of restricting possession of such 
items as contraband, indicating that this restriction did not violate 
the inmate's First Amendment right to possess legal materials. Id.; see 
also Monroe v. Beard, 536 F.3d 198 at 207-09 (3d Cir. 2008) (upholding 
Pennsylvania DOC prohibition of UCC forms, indicating that possession 
of such forms ``demonstrates the considerable `ripple effect' that 
accommodating the plaintiff's right to possess these items may have on 
DOC resources and on guards and DOC employees if other inmates were to 
successfully file false liens.''); Dantzler v. Beard, No. 09-275, 2010 
WL 1008294, *10 (W.D. Pa. Mar. 15, 2010) (Pennsylvania Department of 
Corrections confiscation of an inmate's UCC materials ``did not violate 
his procedural due process rights because, as a matter of law, 
Plaintiff has no property rights in UCC materials.''); Lawson v. 
Stephens, No. 7:15-173, 2018 WL 10731584, at *1 (N.D. Tex. June 22, 
2018) (Texas Department of Correction policy restricting inmate 
possession of UCC materials ``does not violate plaintiff's First 
Amendment right to possess legal materials . . . .''); Torres v. Fla. 
Dep't of Corr., 742 F. App'x 403 (11th Cir. 2018) (Florida Department 
of Corrections ``rule permitting confiscation of inmate's UCC forms was 
reasonably related to legitimate penological interest in preventing 
prisoners from filing fraudulent UCC liens, and thus the rule did not 
violate inmate's First Amendment rights.'').
    Additionally, in United States v. Martin, 356 F. Supp. 2d 621 (W.D. 
Va. 2005), the court held that imposition of a permanent injunction 
barring federal inmates from filing financing statement or liens 
without prior court approval was warranted, where inmates had filed 
meritless financing statements against federal judges and Bureau 
officials for purpose of intimidation and harassment, and where inmates 
continued to try to file liens against other federal officials involved 
in their cases after the government filed suit. Id. at 628-29.
    For these reasons, the Bureau now proposes to prohibit inmate 
possession of any forms that may be used in the fraudulent filing of 
UCC liens and any attempt to publicly disclose the private information 
of others for unlawful purposes.
    Clarification of code 203, regarding threatening.
    Current code 203 prohibits threatening another with bodily harm or 
any other offense. The Bureau now proposes to modify this code to 
clarify the prohibited conduct as communicating an intent to jeopardize 
the safety, security, and orderly operation of a Bureau facility, 
protection of the public, or the person or property of another. No 
substantive or application changes are made to this code.
    Clarification of code 204, regarding extortion and blackmail.
    Current code 204 prohibits extortion; blackmail; protection; 
demanding or receiving money or anything of value in return for 
protection against others, to avoid bodily harm, or under threat of 
informing. The Bureau now proposes to modify this code to clarify the 
prohibited conduct as extortion, blackmail, or otherwise demanding or 
receiving anything of value using actual or threatened force, violence, 
fear, or intimidation. No change is made to the substance or 
application of this rule.
    Reservation of code 205, regarding sexual acts.
    We propose to delete this code as explained above.
    Reservation of code 206, regarding making sexual proposals or 
threats to another.
    We propose to delete this code as explained above.
    Addition of code 210, regarding possession of sexually explicit 
material.
    We propose to create a new code 210 prohibiting possession of 
sexually explicit material. Possession of sexually explicit and 
sexually provocative images, writings, or other materials can pose a 
danger to the security of the institution. Also, the presence of these 
materials in Bureau facilities creates a sexualized work environment, 
which is potentially disturbing to staff conducting routine searches of 
inmate property. This is particularly a concern when inmates openly 
display sexually provocative images in their cells. Furthermore, this 
is also a concern for inmates under specific correctional management 
plans relating to sexual offenses or under treatment for disorders 
related to sexual dysfunction, as ongoing possession of sexually 
explicit images or documents is a risk factor for recidivism and 
counterproductive to rehabilitation.
    Current Bureau regulations in 28 CFR part 540 prohibit inmates from 
receiving sexually explicit material. See, e.g., 28 CFR 540.14(d)(7) 
(correspondence may be rejected if it is ``[s]exually explicit material 
(for example, personal photographs) which by its nature or content 
poses a threat to an individual's personal safety or security, or to 
institution good order . . .''); 28 CFR 540.71(b)(7) (an incoming 
publication may be rejected if it ``is sexually explicit material which 
by its nature or content poses a threat to the security, good order, or 
discipline of the institution, or facilitates criminal activity.'').
    Additionally, 28 CFR 540.72 explains the statutory restriction 
requiring return of commercially published information or material that 
is sexually explicit or features nudity. This derives from repeated 
Congressional mandates against making such information or material 
available to inmates. See 18 U.S.C. 4042 note (``Sexually Explicit 
Commercially Published Material'').\2\ In section 540.72(b)(4), 
``sexually explicit'' is defined as ``a pictorial depiction of actual 
or simulated sexual acts including sexual intercourse, oral sex, or 
masturbation.''
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    \2\ Public Law 107-77, Title VI, sec. 614, Nov. 28, 2001, 115 
Stat. 801, provided that:
    Hereafter, none of the funds appropriated or otherwise made 
available to the Federal Bureau of Prisons may be used to distribute 
or make available any commercially published information or material 
to a prisoner when it is made known to the Federal official having 
authority to obligate or expend such funds that such information or 
material is sexually explicit or features nudity.
    Similar provisions were contained in the following prior 
Appropriations Acts:
    Public Law 106-553, Sec.  1(a)(2) [Sec.  614], Dec. 21, 2000, 
114 Stat. 2762A-106.
    Public Law 106-113, Div. B, Sec.  1000(a)(1) [Title VI, Sec.  
615], Nov. 29, 1999, 113 Stat. 1501A-54.
    Public Law 105-277, Div. A, Sec.  101(b) [Title VI, Sec.  614], 
Oct. 21, 1998, 112 Stat. 2681-113.
    Public Law 105-119, Title VI, Sec.  614, Nov. 26, 1997, 111 
Stat. 2518.
    Public Law 104-208, Div. A, Sec.  101(a) [Title VI, Sec.  614], 
Sept. 30, 1996, 110 Stat. 3009-66.
---------------------------------------------------------------------------

    As indicated above in relation to revised code 114, the Bureau 
recognizes the definition of ``sexually explicit conduct'' in 18 U.S.C. 
2256(2)(A), which is as follows:

. . . ``sexually explicit conduct'' means actual or simulated--

    (i) sexual intercourse, including genital-genital, oral-genital, 
anal-genital, or oral-anal, whether between persons of the same or 
opposite sex;
    (ii) bestiality;
    (iii) masturbation;
    (iv) sadistic or masochistic abuse; or
    (v) lascivious exhibition of the anus, genitals, or pubic area of 
any person;
    As indicated, the Bureau defines ``materials'' as any pictorial 
depiction, to include photos, drawings, digitally or computer-
manipulated image, or other visual depictions (i.e., collages, 
posters). Therefore, this code seeks to prohibit inmate possession of 
visual depictions of actual or simulated sexual

[[Page 6460]]

intercourse, bestiality, masturbation, sadistic or masochistic abuse, 
or lascivious exhibition of the anus, genitals, or pubic area of any 
person.
    By adding this code, we seek to reduce currently prohibited 
behaviors to clarify that the possession of sexually explicit material 
poses a potential harm to staff by creating and maintaining a sexually 
hostile work environment, and to the community when sexual offenders 
persist in conduct contrary to rehabilitation goals.
    Combination of current code 212, regarding group demonstrations; 
current High Severity Level code 213, encouraging others to refuse to 
work or to participate in a work stoppage; and current Moderate 
Severity Level code 336, circulating a petition.
    We propose to combine current code 212, regarding group 
demonstrations, current High Severity Level code 213, encouraging 
others to refuse to work or to participate in a work stoppage, and 
current Moderate Severity Level code 336, circulating a petition. Each 
of these codes describes prohibited conduct which may be described as 
participating in or promoting others to participate in unauthorized 
conduct as a group. Therefore, we propose to create a new code 212, 
which would prohibit participating or promoting others to participate 
with two or more persons in unauthorized behavior, whether planned or 
unplanned (including, but not limited to, unauthorized work stoppage or 
refusal to work or eat, group demonstrations, sit-ins, creating or 
circulating a petition, etc.).
    Prohibiting participation by two or more inmates in authorized 
behavior, such as circulating petitions, for instance, to maintain 
control over group activity by prisoners is a reasonable response to a 
legitimate penological concern. See Duamutef v. O'Keefe, 98 F.3d 22, 24 
(2d Cir. 1996) (explaining that as long as individual grievance 
procedures are available, prisons may bar circulation of petitions); 
Wolfel v. Morris, 972 F.2d 712, 716 (6th Cir. 1992) (``[I]t seems clear 
that a prison does not violate a prisoner's rights by refusing to allow 
circulation of petitions.''). If the group behavior is coupled with a 
demonstrated and evidenced threat to the safety, security, or good 
order of the facility or protection of the public, the penological 
concern is heightened and the necessity of disciplining such activity 
is even greater.
    The appropriate, legally authorized method for inmates to formally 
grieve prison conditions is through the Administrative Remedy Program, 
described in 28 CFR part 542. Under this Program, every inmate can 
raise individual complaints and receive three levels of review (at the 
institution, Region, and Central Office levels).
    Inmate petitions, group demonstrations, sit-ins, and other such 
group behavior are prohibited because these behaviors involve multiple 
inmates with goals of contravening prison operations and management, 
and as such, these activities pose a special risk of disruption that 
does not exist through the sanctioned, individual administrative remedy 
complaint system. Such unauthorized group conduct threatens the safety, 
security, and good order of the facility and the protection of the 
public. This behavior not only poses serious security risks, but also 
undermines the effectiveness and legitimacy of the Administrative 
Remedy Program
    Clarification of code 216, regarding giving or offering an official 
or staff member a bribe, or anything of value.
    We propose to make a minor modification to this code to clarify 
that the prohibited conduct is giving or offering a staff member 
something of value to persuade or induce favor or action, not simply 
giving anything of value without such an expectation. This is a more 
accurate statement of the problematic conduct. We do not propose to 
make substantive or application changes to this code.
    Clarification of code 218, regarding destroying property.
    Currently, code 218 prohibits destroying, altering, or damaging 
government property, or the property of another person, having a value 
in excess of $100.00, or destroying, altering, damaging life-safety 
devices (e.g., fire alarm) regardless of financial value. We propose to 
make minor edits to the language of this code to clarify that the 
prohibited conduct is destroying, altering, or damaging any of the 
following: property valued over $100.00 belonging to the government or 
another person; or property necessary for the protection of life and/or 
safety (e.g., fire alarms), regardless of financial value. This 
proposal does not make substantive changes or changes in application of 
the code.
    Modification of code 219, regarding stealing and theft (including 
data obtained through the unauthorized use or access to any media or 
equipment on which electronic data is stored).
    We propose to modify High Severity Level prohibited act code 219 
regarding stealing and theft to include theft of data obtained through 
unauthorized use or access to any media or equipment on which 
electronic data is stored. Inmates have previously been able to 
compromise certain electronic storage systems to obtain unauthorized 
information to ``check the paperwork'' of other inmates--i.e., to find 
out confidential information about another inmate for the purpose of 
targeting that inmate based on that confidential information. Targeting 
of other inmates based on this confidential information, in turn, 
presents safety and security concerns for inmates and staff due to the 
possibility of violence or other unlawful acts being committed upon the 
inmate whose confidential information was stolen.
    Modification of code 221, regarding being in an unauthorized area 
with a person of the opposite sex without staff permission.
    We propose to modify the High Severity Level prohibited act code 
221, being in an unauthorized area with a person of the opposite sex 
without staff permission, to clarify that inmates will be disciplined 
for being in an unauthorized area without staff permission with any 
other person, regardless of sex. This is a more accurate statement of 
the prohibited conduct and will not change the application of this 
code.
    Modification of code 224, regarding assault that does not involve 
serious physical injury.
    Currently, this code prohibits assaulting any person, but also 
contains a parenthetical explanation that the code should only be used 
when ``less serious physical injury or contact has been attempted or 
accomplished.'' Rather than leave it to the discretion of staff to 
determine whether injuries are ``less serious,'' we propose to modify 
this code to prohibit an assault of any person that does not involve 
serious physical injury, including non-consensual touching.
    We also propose this modification to more clearly distinguish the 
behavior prohibited by this code, which is in the High Severity Level 
category, from the proposed revision to Greatest Severity Level code 
101, which prohibits assault and/or battery of any person involving 
serious physical injury, or an armed assault on the institution's 
secure perimeter.
    The revised code 224 also prohibits non-consensual touching, which 
is currently encompassed by code 229, sexual assault of any person, 
involving non-consensual touching without force or threat of force. 
Code 229 will be reserved, as this prohibited conduct is proposed to be 
encompassed by revised code 224 and possibly revised code 114.
    Modification of code 228, regarding tattooing or self-mutilation.
    We propose to modify the High Severity Level prohibited act code 
228,

[[Page 6461]]

tattooing or self-mutilation, to clarify that inmates will be 
disciplined for body modification, including but not limited to 
tattooing and piercing, and possession of any paraphernalia and/or 
tools for the use of any form of body modification. The code 
description will also include the caveat that this code shall not be 
applied to acts of self-directed violence (e.g., cutting).
    This addition reflects the seriousness of the conduct, the 
disruptive nature of possession of such items, and the potential health 
concerns resulting from improper use. However, we also add the caveat 
that this code is not to be used in any instance involving self-
directed violence or harm. This clarification reflects the Bureau's 
recognition that an inmate's mental health symptoms, including acute 
symptoms of withdrawal from drugs or other addictive substances, should 
not result in disciplinary sanctions.
    Reservation of code 229, regarding sexual assault of any person, 
involving non-consensual touching without force or threat of force.
    We propose to delete this code as explained above.
    Addition of code 230, regarding possession and/or use of tobacco or 
related paraphernalia.
    Currently, code 331 allows for discipline for possession, 
manufacture, introduction, or loss of a non-hazardous tool,'' including 
``smoking apparatus and tobacco in any form where prohibited . . .'' 
[Emphasis added]. We propose to remove the phrase ``smoking apparatus 
and tobacco in any form where prohibited'' and transfer it into new 
code 230. We also propose to clarify that smoking apparatus and tobacco 
in any form may include, but is not limited to, such items as vape 
devices and other non-conventional forms of delivery.
    Increasing the severity level of possession and/or use of tobacco 
or related paraphernalia underscores the seriousness of the offense. 
This is necessary because since the last revision of the prohibited act 
codes, 28 CFR 551.163 codified the prohibition of possession of smoking 
apparatus and tobacco in any form, unless as part of an authorized 
religious activity. Furthermore, since the last revision of this code, 
the use of alternate forms of delivery, such as vape pens, has become 
more prevalent among inmates in Bureau facilities, leading to further 
introduction of this type of prohibited contraband and increased 
security issues.
    Modification of code 231, regarding requesting, demanding, 
pressuring, or otherwise intentionally creating a situation, which 
causes an inmate to produce or display his/her own court documents for 
any unauthorized purpose to another inmate.
    We propose to make two modifications to code 231. We first propose 
to amend the language of the offense code to more accurately focus on 
the coercive behavior involved when an inmate seeks to obtain another 
inmate's personal court documents and information for unauthorized 
purposes. We also propose to include language clarifying that some 
documents beyond ``court documents'' should be included as part of this 
code. Sensitive information about a particular inmate (including Walsh 
Act information) may appear on court documents or on non-court 
documents, including, but not limited to, PATTERN scoresheets. We 
therefore propose to revise the code to clarify that the prohibited 
conduct is requesting, demanding, pressuring, or otherwise creating a 
situation that causes an inmate to produce or display their own court 
documents or other documents (e.g., PATTERN scoresheets) that contain 
information about the inmate's current or prior offense(s) for any 
unauthorized purpose to another inmate.
    Addition of code 232, regarding introduction of any unauthorized 
non-hazardous item or contraband.
    We propose to add a new High Severity Level prohibited act code 
232, to underscore the seriousness of introducing unauthorized items 
(i.e., contraband) into a correctional setting. Introduction of 
unauthorized items cannot be monitored for their potential in creating 
a hazardous environment for both staff and inmates; even seemingly 
harmless, non Bureau-purchased items like cosmetic products or cleaning 
supplies may contain harmful chemicals or other dangerous substances 
that pose health, safety, and security risks to all individuals within 
the correctional setting.
    Another institutional security consideration involves the 
unintended consequences of introduction of certain contraband into a 
correctional facility, including the creation or perpetuation of an 
unauthorized series of financial transactions. One example includes an 
inmate obtaining cosmetic items and dietary supplements and then 
marking up the price substantially to sell to other inmates who are 
unable to purchase such items through the official commissary. Then, 
the inmate who purchases the contraband from another inmate may owe a 
debt, which, if left unpaid, can create the precise type of volatile 
situation that may cause violence to erupt and risk the safety of both 
inmates and staff.
    This new code is designed to thwart contraband introduction and 
minimize the risks to the health and safety of Bureau inmates, staff, 
and members of the public.
    Addition of code 235, regarding communicating gang affiliation, 
participating in gang-related activities, and possession of 
paraphernalia indicating gang affiliation.
    We propose to increase the severity level of current code 335, 
communicating gang affiliation, participating in gang-related 
activities, or possession of paraphernalia indicating gang affiliation, 
from the Moderate Severity Level category to the High Severity Level 
category. This change is proposed to underscore the seriousness of the 
offense, as the existence of gangs jeopardizes the safety, security, 
and good order of Bureau facilities.
    Addition of code 294, regarding unauthorized use of social media.
    We propose to create a new High Severity Level prohibited act code 
(294) for accessing, using, or maintaining social media, or directing 
others to establish or maintain social media accounts on the inmate's 
behalf (including, but not limited to the following: Facebook, Twitter, 
Instagram, Snapchat, TikTok, etc. or any successor). In contrast to 
proposed code 194, code 294 acts will not involve commission or aid in 
the commission of any criminal act or any Greatest category prohibited 
act.
    Addition of code 295, regarding use of video visits for abuses 
other than criminal activity.
    We propose to create a new High Severity Level prohibited act code 
which prohibits use of video visits for abuses other than criminal 
activity, including, but not limited to, conduct that circumvents 
established video visit session monitoring procedures; conduct that 
permits communication with individuals other than the authorized 
visitors; conduct that would be unauthorized if it were to occur in an 
in-person visiting room; or use of the video session to commit or 
further another High category prohibited act.
    We propose the addition of this code to deter abuses of any video 
visiting system in place at a Bureau facility, such as sharing 
passwords, not logging off the system, nudity; and/or use of visual 
and/or verbal communicated actions by the inmate or approved contact 
such as hand/body gestures outside of general sign language. General 
sign language is not limited to American Sign language and includes

[[Page 6462]]

``home signs''--i.e., communicative gestures invented or created by a 
Deaf person within their own family--as well as other visual or tactual 
communication forms that might be used by certified Deaf interpreters 
or other individuals who are Deaf or Hard of Hearing. General sign 
language does not include gang signs/signals, sexual acts/gestures/
innuendos, prohibited substance/drug use, etc.
    The Bureau adds this code to account for advances in technology 
that have allowed for the use of video visiting by inmates as an 
alternative to telephonic communication and visiting room visitation. 
This code is necessary for infractions similar to those addressed by 
codes 296 and 297, which address similar conduct for use of the mail 
and telephone for such abuses ``other than criminal activity which 
circumvent'' monitoring or to ``commit or further a High category 
prohibited act.''
    Expansion of code 296, regarding use of the mail for abuses other 
than criminal activity.
    Current code 296 allows for discipline for use of the mail for 
abuses other than criminal activity that circumvent mail monitoring 
procedures (e.g., use of the mail to commit or further a High category 
prohibited act, special mail abuse; writing letters in code; directing 
others to send, sending, or receiving a letter or mail through 
unauthorized means; sending mail for other inmates without 
authorization; sending correspondence to a specific address with 
directions or intent to have the correspondence sent to an unauthorized 
person; and using a fictitious return address in an attempt to send or 
receive unauthorized correspondence).
    We propose to expand this code to include misuse of any form of 
electronic mail and messaging, including, but not limited to, messaging 
through the TRULINCS system. The Bureau makes this addition to account 
for advances in technology that have allowed for the use of electronic 
mail by inmates as an alternative to written correspondence and 
telephone communication. This change is necessary to discipline for 
infractions similarly to current code 296, and 297, ``Use of the 
telephone for abuses other than illegal activity which circumvent the 
ability of staff to monitor frequency of telephone use, content of the 
call, or the number called; or to commit or further a High category 
prohibited act.''
    Reservation of code 300, regarding indecent exposure.
    We propose to delete this code as explained above.
    Clarification of code 313, regarding lying or providing a false 
statement to a staff member.
    We propose to modify this code to clarify that the prohibited 
conduct is providing a false statement to a staff member and includes 
feigning illness. This is a more accurate description of the prohibited 
behavior. Adding feigning illness to this code will serve to deter 
false inmate reports of illness, which not only subvert the inmate's 
rehabilitative programming requirements, but also have the potential to 
unnecessarily burden both staff and medical professionals and cause 
unnecessary expenditures.
    Combination of code 324, regarding gambling, with code 325, 
preparing and conducting a gambling pool, and code 326, possession of 
gambling paraphernalia.
    We propose to combine these three codes into one code 324, 
describing the prohibited conduct as gambling, possession of gambling 
paraphernalia, or preparing or conducting a gambling pool. The previous 
separation of these three types of conduct was unnecessary, as the 
conduct described is interconnected.
    Clarification of code 331 to remove reference to smoking ``where 
prohibited.''
    Currently, code 331 prohibits possession, manufacture, 
introduction, or loss of a non-hazardous tool, equipment, supplies, or 
other non-hazardous contraband (tools not likely to be used in an 
escape or escape attempt, or to serve as a weapon capable of doing 
serious bodily harm to others, or not hazardous to institutional 
security or personal safety) (other non-hazardous contraband includes 
such items as food, cosmetics, cleaning supplies, smoking apparatus and 
tobacco in any form where prohibited, and unauthorized nutritional/
dietary supplements)'' [Emphasis added].
    We propose to remove the phrase ``smoking apparatus and tobacco in 
any form where prohibited'' and increase the severity level of this 
prohibited conduct to create High Severity code 230. We also eliminate/
delete code 332--Smoking where prohibited, because smoking apparatus is 
prohibited and smoking is functionally disallowed for inmates unless 
part of an authorized religious activity. See 28 CFR 551.162-.163.
    We also propose to streamline the conduct description in this code 
to prohibit possession, manufacture or loss of a non-hazardous item or 
contraband, further explaining in the parenthetical that the term 
``non-hazardous item or contraband'' includes, but is not limited to, 
items not likely to be used in an escape; items not likely to serve as 
a weapon capable of doing serious bodily harm to others; items not 
hazardous to institutional security or personal safety; unauthorized 
food, cosmetics, cleaning supplies, and unauthorized nutritional/
dietary supplements.
    Reservation of code 332, regarding smoking where prohibited.
    We propose to delete this code as explained above.
    Reservation of code 335, regarding communicating gang affiliation; 
participating in gang related activities; possession of paraphernalia 
indicating gang affiliation.
    We propose to delete this code as explained above.
    Addition of code 337, increasing severity level for code 404, 
regarding using abusive or obscene language.
    We propose to increase the severity level of Low Severity Level 
code 404, using abusive or obscene language, to Moderate Severity Level 
prohibited act code 338. This code will be moved to the 300 level 
because, as will be explained below, we propose to eliminate the Low 
Severity Level prohibited act code (400) series entirely. We note that 
this code does not apply to use of abusive or obscene language uttered 
or written by an inmate with a relevant disability (e.g., Tourette 
Syndrome).''
    Addition of code 338, increasing severity level for codes 407 & 
409, regarding conduct with a visitor in violation of Bureau 
regulations and unauthorized physical contact (e.g., kissing, 
embracing).
    We propose to increase the severity level of Low Severity Level 
code 407 and 409 for inappropriate conduct in the visiting room. These 
codes would combine to become Moderate Severity Level prohibited act 
code 338, ``unauthorized conduct in the visiting room (e.g., kissing, 
embracing, etc.).'' Also, as explained below, we propose to eliminate 
the Low Severity Level prohibited act code (400) series entirely. These 
changes will be further explained below.
    Addition of electronic mail to code 396, regarding use of the mail 
for abuses other than criminal activity.
    Current code 396 allows for discipline for use of the mail for 
abuses other than criminal activity that do not circumvent mail 
monitoring; or use of the mail to commit or further a Moderate category 
prohibited act. We propose to add ``electronic mail'' to this code to 
account for advances in technology that have allowed for the use of 
electronic mail by inmates as an alternative to written correspondence 
and telephone

[[Page 6463]]

communication. The term ``electronic mail'' shall include any form of 
electronic mail and messaging, including, but not limited to, messaging 
through the TRULINCS system. This change is necessary for infractions 
similar to those addressed by code 396, for misuse of the mail.
    Reservation of code 397, regarding use of the telephone for abuses 
other than illegal activity which do not circumvent the ability of 
staff to monitor frequency of telephone use, content of the call, or 
the number called; or to commit or further a Moderate category 
prohibited act.
    We propose to delete this prohibited act code because it has been 
misused to prohibit conduct that actually has already circumvented the 
ability of staff to monitor telephone use, rather than activity that 
has the potential to circumvent monitoring.
    This code had been misunderstood as a less-severe version of code 
297, which allows for discipline of conduct that circumvents monitoring 
for an illegal purpose. Inmates have been identified as having 
committed prohibited acts that would result in circumvention of 
telephone monitoring but did not actually result in circumvention of 
monitoring. These inmates were then downgraded or shown leniency by 
being charged with a 397-level code instead of the appropriate 297-
level code. For this reason, we eliminate the 397 code to avoid 
confusion and to clarify that inmates should be disciplined for any 
conduct that may circumvent the ability of staff to monitor 
communications, regardless of whether monitoring is actually 
circumvented.
    Reservation of the Low Severity Level prohibited act codes (400 
series).
    We propose to delete the Low Severity Level prohibited act code 
(400) series entirely. Currently, there are six active codes listed, 
which we propose to remove for the following reasons:
    ``402 Malingering, feigning illness.'' We propose to remove this 
prohibited act code because malingering does not typically require 
disciplinary action. However, because feigning an illness equates to 
lying or providing a false statement to a staff member, we have 
incorporated that portion of this code into code 313 above.
    ``404 Using abusive or obscene language.'' As described earlier, we 
propose to increase the severity level of Low Severity Level code 404, 
using abusive or obscene language, to Moderate Severity Level 
prohibited act code 337. Further, because we have significantly reduced 
the level of disciplinary segregation sanction that may be imposed for 
the Moderate Severity Level prohibited act codes, it must be noted that 
moving this conduct from the ``Low'' to the ``Moderate'' category does 
not change the severity of potential sanctions that may be imposed. 
Further, staff will be instructed that the inmate's level of misconduct 
must be greater than that previously triggering an incident report for 
a ``Low'' prohibited act code.
    ``407 Conduct with a visitor in violation of Bureau regulations'' 
and ``409 Unauthorized physical contact (e.g., kissing, embracing).'' 
As described earlier, we propose to increase the severity level of Low 
Severity Level code 407 and 409 for inappropriate conduct in the 
visiting room. These codes would combine to become Moderate Severity 
Level prohibited act code 338, ``unauthorized conduct in the visiting 
room (e.g., kissing, embracing, etc.).''
    Because we have significantly reduced the level of disciplinary 
segregation sanction that may be imposed for the Moderate Severity 
Level prohibited act codes, it must be noted that moving this conduct 
from the ``Low'' to the ``Moderate'' category does not change the 
severity of potential sanctions that may be imposed. Because we 
increase the seriousness of the offense, staff will be instructed that 
the inmate's level of misconduct must be greater than that previously 
triggering an incident report for either of the two previous 400-level 
``Low'' prohibited act codes.
    ``498 Interfering with a staff member in the performance of duties 
most like another Low Severity prohibited act'' and ``499 Conduct which 
disrupts or interferes with the security or orderly running of the 
institution or the Bureau of Prisons most like another Low Severity 
prohibited act.'' Both of these codes indicate that they are ``to be 
used only when another charge of Low Severity is not accurate. The 
offending conduct must be charged as `most like' one of the listed Low 
Severity prohibited acts.'' We propose to eliminate these codes because 
they are vague and because the conduct described is more accurately 
specified by other codes listed in the Greatest, High, and Moderate 
Severity prohibited act codes.
    Because we propose to delete the Low Severity Level, we likewise 
propose to delete language relating to the Low Severity Level in Table 
2 to Sec.  541.3--Additional Available Sanctions for repeated 
Prohibited Acts Within the Same Severity Level.
    Modifications to the disciplinary segregation sanction.
    In the mid-2000s, the Bureau experienced a spike in prison 
violence, including the murder of a correctional officer. In response, 
the Bureau implemented several additional measures, including harsher 
penalties for inmates who violated disciplinary rules. In particular, 
this approach resulted in regulation changes that increased the length 
of maximum possible time for the penalties of disciplinary segregation 
time (75 FR 76263, December 8, 2010; effective on March 1, 2011).
    Maximum terms of segregation under current Bureau regulations are 
as follows:

------------------------------------------------------------------------
                                                            Subsequent
         Severity level               First offense         offense(s)
                                                              (days)
------------------------------------------------------------------------
Greatest (100).................  12 months (365 days)...             545
High (200).....................  6 months (180 days)....             365
Moderate (300).................  3 months (90 days).....             180
Low (400)......................  Not permitted..........              30
------------------------------------------------------------------------

    After 2011, the Bureau experienced a decline in its restrictive 
housing population, which coincided with a reduction in inmate-on-staff 
assaults at Bureau facilities. The chart below compares the number of 
inmates in segregation to the total prison population between January 
2012 and August 2021, illustrating the decline in restrictive housing 
population.

[[Page 6464]]



                                    Overview of Bureau's Restrictive Housing
                               [Adapted from Bureau's SENTRY Recordkeeping System]
----------------------------------------------------------------------------------------------------------------
                                                                                              Change
                                                                                 -------------------------------
                 Type of housing                     01/28/12        08/05/21          Total
                                                                                     reduction       % Decline
----------------------------------------------------------------------------------------------------------------
All Bureau inmates..............................         175,244         138,235          37,009           21.12
Total in Restrictive Housing....................          13,196          10,236           2,960           22.43
Special Housing Units (SHU).....................          11,106           9,361           1,745           15.71
Special Management Unit (SMU)...................           1,647             533           1,114           67.64
Administrative Maximum (ADX)....................             443             342             101           22.80
----------------------------------------------------------------------------------------------------------------

    As a result of the decline in imposition of the disciplinary 
segregation sanction, the Report recommended that the Bureau reduce the 
maximum time an inmate can be placed in segregation as a sanction for a 
disciplinary infraction. The Report recommended elimination of the 
disciplinary segregation sanction for all 400-level prohibited acts, 
and for an inmate's first adjudicated violation of all 300-level 
prohibited acts, and that the Bureau reclassify some 300-level 
prohibited acts as 200-level acts due to the more serious nature of 
these offenses. The following chart illustrates the recommendations of 
the Report:

----------------------------------------------------------------------------------------------------------------
                                                    Current maximum penalties       Proposed maximum penalties
                                                ----------------------------------------------------------------
                  Offense type                    First offense     Subsequent     First offense    Subsequent
                                                     (days)           (days)          (days)          (days)
----------------------------------------------------------------------------------------------------------------
100-Level......................................             365             545               60              90
200-Level (High)...............................             180             365               30              60
300-Level......................................               0             180                0              15
400-Level (Low)................................               0              30
----------------------------------------------------------------------------------------------------------------

    Therefore, the Bureau now proposes that maximum penalties for 
disciplinary segregation sanctions for Greatest, High, and Moderate 
prohibited act codes be decreased as suggested in the Report (see chart 
above). This would effectively undo the change to disciplinary 
segregation sanction maximums made by the final rule of 2011.
    This change would result in changes to 28 CFR 541.3, Table 1 to 
Sec.  541.3--Prohibited Acts and Available Sanctions, in the 
``Available Sanctions'' listed for each severity level prohibited acts 
category. The disciplinary segregation sanction is listed in each 
``Available Sanctions'' sub-table as item C. and would be modified 
according to the chart shown above. Likewise, 28 CFR 541.3 Table 2 to 
Sec.  541.3--Additional Available Sanctions for Repeated Prohibited 
Acts Within the Same Severity Level, would be similarly modified to 
reflect the chart shown above.
    Changes to Loss of Privilege Sanctions.
    In 28 CFR 541.3 Table 1 to Sec.  541.3--Prohibited Acts and 
Available Sanctions, each severity level of prohibited act codes is 
followed by a table listing available sanctions that may be imposed on 
inmates if they are found to have committed those acts by DHOs. One 
such sanction found in each table is the ``loss of privileges'' 
sanction. In each ``available sanctions'' list, the ``loss of 
privileges'' sanction is followed by a descriptive parenthetical, as 
follows: ``Loss of privileges (e.g., visiting, telephone, commissary, 
movies, recreation).''
    We now propose to add to that descriptive parenthetical the 
following additional examples of privileges that may be removed as a 
potential sanction: video visits, electronic device(s), and the use of 
electronic mail and messaging of any kind, including, but not limited 
to, through the TRULINCS system. We add these terms to accommodate 
advances in technology and to clarify that the Bureau views these items 
as privileges for inmates. However, the Bureau emphasizes that none of 
these sanctions should affect an inmate's right to counsel and the 
ability of an inmate to meet or otherwise communicate with counsel. 
Accordingly, the Bureau clarifies that no employee may impose as a 
sanction any measure whatsoever that restricts an inmate's right of 
access to counsel.
    Amendments to Table 2 to Sec.  541.3--Additional Available 
Sanctions for Repeated Prohibited Acts Within the Same Severity Level.
    In addition to eliminating references to Low Severity Level (400-
series) prohibited acts as described above, we propose the following 
changes to Table 2: First, we propose to change second column heading 
from ``Time period for prior offense (same code)'' to ``Time period for 
Prior Offense (same severity level).'' We make this change because it 
has been misinterpreted as applying only to commission of the same 
specific code conduct. Instead, the application is intended to apply to 
commission of any prior offense within the same severity level as the 
first or second offense. In other words, if an inmate was found to have 
violated code 396, some staff mistakenly assumed that if the same 
inmate then violated code 334, the available sanctions in the table 
would not apply. This proposed change is meant to clarify that if an 
inmate is found to have committed a prohibited act in any severity 
level, and then commits any other prohibited act within the same 
severity level, whether it is the same actual code number or not, the 
inmate may be subject to additional sanctions for this additional 
prohibited conduct.
    Second, we modify the time periods for additional available 
sanctions in each severity level to decrease the amount of disciplinary 
segregation time, as described above.
    Third, to correct an oversight in changes made to conform to the 
requirements of the First Step Act of 2018, we amend Table 2 to 
indicate that if an inmate commits the same Moderate Severity Level 
(300-series) offense, thereby violating the same prohibited act code 
within six months, up to seven days of FSA Earned Time Credits may be 
forfeited; and if an inmate commits a third violation of the same 
Moderate Severity Level prohibited act code

[[Page 6465]]

within six months, the inmate may forfeit up to fourteen days of FSA 
Earned Time Credits. This amendment is consistent with the Bureau's 
regulations regarding FSA Earned Time Credit, as published at 87 FR 
2705 (Jan. 19, 2022). No substantive changes are made to the sanctions 
as published in that regulation; rather, language relating to 
subsequent offenses of the same prohibited act code has been moved from 
Table 1 to Table 2, which is the correct location.
    Amendments to 28 CFR 541.5, regarding the discipline process.
    Currently, 28 CFR 541.5(a), describing the incident report, 
explains that the disciplinary process begins when staff reasonably 
believe the inmate has committed a prohibited act. We make a minor 
stylistic edit to the language regarding the composition of the 
incident report but make no substantive changes to this section. 
Likewise, we make similar stylistic edits to language in subparagraph 
(b) describing the investigation process, but do not change the 
substance of this regulation, or its application.
    Amendments to 28 CFR 541.7, regarding unit discipline committee 
review.
    We propose to clarify when the Unit Discipline Committee (UDC) will 
review the incident report. Currently, 28 CFR 541.7(c) indicates that 
the UDC ordinarily reviews the incident report ``within five work days 
after it is issued, not counting the day it was issued, weekends, and 
holidays.'' Inmates and staff found that description confusing and 
problematic, due to disparity between the time staff become aware of 
incidents and when incident reports are actually issued. At times, 
incident reports cannot be issued immediately for various reasons, 
including time and attention needed to resolve the situation that led 
to the incident in question.
    Therefore, we propose to clarify that the UDC will ordinarily 
review the incident report within five work days ``after the day staff 
become aware of the inmate's involvement in the incident, not counting 
the day staff became aware of the inmate's involvement, weekends, or 
holidays.'' This will result in more immediate action and less 
confusion regarding discipline.
    We also propose to make a minor change to 28 CFR 541.7(f), to 
clarify that the UDC may not impose monetary restitution as a sanction 
for inmate disciplinary infractions. Subparagraph (f) of 28 CFR 541.7 
currently indicates that the UDC may impose ``any of the available 
sanctions listed in Tables 1 and 2, except loss of good conduct 
sentence credit, disciplinary segregation, or monetary fines.'' We 
propose to add ``monetary restitution'' to this list in order to 
clarify for staff that this is a sanction that may only be imposed at 
the DHO level. This is not a change to current practice or the 
substance of regulation, but rather a technical correction.
    Clarification of 28 CFR 541.8, regarding hearings by Discipline 
Hearing Officers.
    We make a minor change to the language of 28 CFR 541.8(a)(3) to 
clarify that the incident report may be referred back to the UDC for 
further investigation, review, disposition, or other action as 
recommended or necessary. This more accurately states the purpose of 
this section, but makes no substantive changes or changes in 
application.

II. Regulatory Analyses

Executive Orders 12866, 13563, and 14094 (Regulatory Review)

    The Department has determined that this rulemaking is a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866, Regulatory Planning and Review, but it is not a section 3(f)(1) 
significant action. Accordingly, this proposed rule has been submitted 
to the Office of Management and Budget (``OMB'') for review. This 
proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation; in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation, and in accordance with Executive 
Order 14094, ``Modernizing Regulatory Review''.

Executive Order 12988 (Plain Language)

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, ``Civil Justice 
Reform.''

Executive Order 13132 (Federalism)

    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, under Executive Order 13132, 
we determine that this regulation does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and 
certifies that it will not have a significant economic impact upon a 
substantial number of small entities for the following reasons: This 
regulation pertains to the correctional management of inmates committed 
to the custody of the Attorney General or the Director of the Bureau of 
Prisons. Its economic impact is limited to the Bureau's appropriated 
funds.
    Since January 2012, the Bureau has reduced the total number of 
inmates in restrictive housing by nearly 25 percent. The Department 
estimates that the changes made by this proposed rule will result in 
additional substantial reductions in the Bureau's restrictive housing 
population. Although it is impossible to quantify the exact size of the 
future reductions, the Department notes that other state and local 
correctional systems implementing reforms, including those 
jurisdictions discussed earlier in this Report, have reported 
reductions in their restrictive housing populations in recent years by 
nearly 50 percent or more.

Unfunded Mandates Reform Act of 1995

    This regulation 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.

Congressional Review Act

    This rule is not a major rule as defined by 5 U.S.C. 804 of the 
Congressional Review Act. This regulation 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.

List of Subjects in 28 CFR Part 541

    Prisoners.

Colette S. Peters,
Director, Federal Bureau of Prisons.

    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons, we propose to amend 28 CFR part 541 as follows:

[[Page 6466]]

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

0
1. The authority citation for 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.

Subpart A--Inmate Discipline Program

0
2. Revise Sec.  541.1 to read as follows:


Sec.  541.1  Purpose.

    (a) Nothing in this subpart shall be construed to create a private 
right of action or otherwise permit civil claims for alleged 
violations.
    (b) The purpose of the inmate discipline program is to help ensure 
the safety, security, and orderly operation of correctional facilities, 
and the protection of the public, by sanctioning inmates who commit 
prohibited acts.
    (c) The purpose of this subpart is to describe the inmate 
discipline program of the Federal Bureau of Prisons (Bureau), 
authorized by 18 U.S.C. 4042(a)(3), and to ensure that disciplinary 
sanctions will not be imposed in a capricious or retaliatory manner.
    (d) Consistent with the Rehabilitation Act of 1973, for all 
discipline cases, the Unit Discipline Committee or Disciplinary Hearing 
Officer shall consider the individual inmate's mental health and 
disabilities when determining the appropriateness of sanctions.
0
3. Revise Sec.  541.2 to read as follows:


Sec.  541.2  Application.

    (a) Staff authorized to implement the Inmate Discipline Program. 
For the purposes of this subpart, ``staff'' means staff authorized by 
the Bureau to implement the inmate discipline program as described in 
this subpart. Residential Reentry Center employees are staff authorized 
to implement the Inmate Discipline Program.
    (b) Application of the Inmate Discipline Program. This program 
applies to sentenced and unsentenced inmates in:
    (1) Bureau custody; and
    (2) Any prison, institution, or facility, including community 
confinement facilities, in which persons are held in custody by 
direction of, or under an agreement with, the Bureau of Prisons.
0
4. Revise Sec.  541.3 to read as follows:


Sec.  541.3  Prohibited acts and available sanctions.

    (a) Prohibited acts. The list of prohibited acts is divided into 
three separate categories based on severity: Greatest; High; and 
Moderate.
    (b) Available sanctions. The list of available sanctions for 
committing prohibited acts is listed in Table 1 to this section--
Prohibited Acts and Available Sanctions. If you commit repetitive 
prohibited acts, we can impose increased sanctions, as listed in Table 
2 to this section--Additional Available Sanctions for Repeated 
Prohibited Acts Within the Same Severity Level. No Bureau employee may 
impose as a sanction any measure whatsoever that restricts an inmate's 
right of access to counsel.

Table 1 to Sec.  541.3--Prohibited Acts and Available Sanctions

Greatest Severity Level Prohibited Acts

    101 An attempted or accomplished assault and/or battery of any 
person involving serious physical injury, or an armed assault on the 
institution's secure perimeter.
    102 Escape (unauthorized departure from custody), including, but 
not limited to, any of the following: unauthorized departure from the 
buildings, lands, property or perimeter (inside or outside) of any 
secure or non-secure facility; unauthorized departure from community 
confinement, work detail, program or activity (whether escorted or 
unescorted); and unauthorized departure from any authorized location 
regardless of electronic monitoring devices.
    103 Causing ignition or combustion (including, but not limited to, 
fire or explosion) which threatens serious bodily harm; or is done in 
furtherance of another Greatest Severity Level prohibited act.
    104 Possession, manufacture, or introduction of any item that has 
been weaponized (including, but not limited to, firearms, sharpened 
instruments, unauthorized blades, explosives, ammunition, unauthorized 
chemicals, or any other item that has been modified in order to be used 
as a weapon).
    105 Rioting; promoting rioting; or encouraging others to 
participate in a riot (``riot'' is defined as a disturbance with two or 
more people which involves violence or threats of violence or damage to 
government property, for the purpose of preventing or coercing official 
action).
    106 (Not to be used).
    107 Taking hostage(s).
    108 Use, possession, manufacture, introduction, or loss of a 
hazardous item, including, but not limited to, items which may 
facilitate escape; cause serious bodily harm to others; or are 
otherwise hazardous to institutional security or personal safety (e.g., 
hacksaw blade, body armor, maps which could facilitate escape, handmade 
rope, or other escape paraphernalia, portable telephone, pager, other 
electronic device or items necessary in the use of these devices).
    109 (Not to be used).
    110 Refusing to provide a urine sample or take part in any 
narcotics or drug testing.
    111 Introduction or manufacture of any narcotics, marijuana, drugs, 
or related paraphernalia, not prescribed for the individual by 
authorized medical staff.
    112 Use of any narcotics, marijuana, drugs, or related 
paraphernalia, not prescribed for the individual by authorized medical 
staff.
    113 Possession of any narcotics, marijuana, drugs, or related 
paraphernalia, not currently prescribed for the individual by 
authorized medical staff.
    114 Sexually explicit conduct involving force, threat of force, or 
threat of harm; or sexually explicit conduct without consent or through 
coercion; or attempts thereof. This definition encompasses, but is not 
limited to, conduct that rises to the level of assault and sexually 
explicit conduct that staff have observed and instructed an inmate to 
cease. The term ``sexually explicit conduct'' means actual or 
simulated--
    (i) sexual intercourse, including genital-genital, oral-genital, 
anal-genital, or oral-anal, whether between persons of the same or 
opposite sex;
    (ii) bestiality;
    (iii) masturbation;
    (iv) sadistic or masochistic abuse; or
    (v) lascivious exhibition of the anus, genitals, or pubic area of 
any person.
    115 Destroying and/or disposing of any item during a search or 
attempt to search.
    116 Refusing to breathe into a breathalyzer or take part in any 
alcohol or intoxicant testing.
    117 Introduction or manufacture of any alcohol, intoxicants, or 
related paraphernalia not prescribed for the individual by authorized 
medical staff.
    118 Use of any alcohol, intoxicants, or related paraphernalia not 
currently prescribed for the individual by authorized medical staff.
    119 Possession of any alcohol, intoxicants, or related 
paraphernalia not currently prescribed for the individual by authorized 
medical staff.
    194 Accessing, using, or maintaining social media accounts 
(including, but

[[Page 6467]]

not limited to the following: Facebook, Twitter, Instagram, Snapchat, 
TikTok, etc.), or directing others to establish or maintain social 
media accounts on the inmate's behalf for the purpose of committing or 
aiding in the commission of a criminal act; of committing or aiding in 
the commission of any Greatest category prohibited act; or of 
circumventing authorized communications monitoring for the purpose of 
committing or aiding in the commission of a criminal act or of any 
Greatest category prohibited act. This code also prohibits inmates' use 
of fund transfer services such as CashApp, as explained in more detail 
below.
    195 Use of video visits to commit or aid in the commission of a 
criminal act or any Greatest category prohibited act.
    196 Use of the mail or any form of electronic mail and messaging 
(including messaging through the TRULINCS system), for an illegal 
purpose or to commit or further a Greatest Severity Level prohibited 
act.
    197 Use of the telephone for an illegal purpose or to commit or 
further a Greatest category prohibited act.
    198 Interfering with a staff member in the performance of duties 
most like another Greatest severity prohibited act. This charge is to 
be used only when another charge of Greatest severity is not accurate. 
The offending conduct must be charged as ``most like'' one of the 
listed Greatest severity prohibited acts.
    199 Conduct which disrupts or interferes with the security or 
orderly running of the institution or the Bureau of Prisons most like 
another Greatest severity prohibited act. This charge is to be used 
only when another charge of Greatest severity is not accurate. The 
offending conduct must be charged as ``most like'' one of the listed 
Greatest severity prohibited acts.

Available Sanctions for Greatest Severity Level Prohibited Acts

    A. Recommend parole date rescission or retardation.
    B. Forfeit and/or withhold earned statutory good time or non-vested 
good conduct time (up to 100%) and/or terminate or disallow extra good 
time (an extra good time or good conduct time sanction may not be 
suspended).
    B.1. Disallow ordinarily between 50% and 75% (27-41 days) of good 
conduct time credit available for year (a good conduct time sanction 
may not be suspended).
    B.2 Forfeit up to 41 days of earned First Step Act (FSA) Time 
Credits (see 28 CFR part 523, subpart E) for each prohibited act 
committed.
    C. Disciplinary segregation (up to 60 days).
    D. Make monetary restitution.
    E. Monetary fine.
    F. Loss of privileges (e.g., visiting, video visits, telephone, 
commissary, movies, recreation, electronic device(s), electronic mail, 
electronic messaging through the TRULINCS system).
    G. Change housing (quarters).
    H. Remove from program and/or group activity.
    I. Loss of job.
    J. Impound inmate's personal property.
    K. Confiscate contraband.
    L. Restrict to quarters.
    M. Extra duty.

High Severity Level Prohibited Acts

    200 (Not to be used).
    201 Fighting, defined as a hostile physical or verbal encounter 
between two or more persons.
    202 Possession of any forms that may be used in the fraudulent 
filing of Uniform Commercial Code liens, or attempting to publicly 
disclose the private information of others for unlawful purposes.
    203 Communicating intent to jeopardize the safety, security, and 
orderly operation of a Bureau facility, the public, or the person or 
property of another.
    204 Extortion, blackmail, or otherwise demanding or receiving 
anything of value through use of actual or threatened force, violence, 
fear, or intimidation.
    205 (Not to be used).
    206 (Not to be used).
    207 Wearing a disguise or a mask.
    208 Possession of any unauthorized locking device, or lock pick, or 
tampering with or blocking any lock device (includes keys), or 
destroying, altering, interfering with, improperly using, or damaging 
any security device, mechanism, or procedure.
    209 Adulteration of any food or drink.
    210 Possession of sexually explicit material.
    211 Possessing any officer's or staff clothing.
    212 Participating or promoting others to participate with two or 
more persons in unauthorized behavior, whether planned or unplanned 
(including, but not limited to, group demonstrations, sit-ins, refusing 
to eat, creating or circulating a petition, refusal to work, work 
stoppage, etc.).
    213 (Not to be used).
    214 (Not to be used).
    215 (Not to be used).
    216 Giving or offering a staff member something of value to 
persuade or induce favor or action.
    217 Giving money to, or receiving money from, any person for the 
purpose of introducing contraband or any other illegal or prohibited 
purpose.
    218 Destroying, altering, or damaging any of the following: 
property valued over $100.00 belonging to the government or another 
person; property necessary for the protection of life and/or safety 
(e.g., fire alarms), regardless of financial value.
    219 Stealing; theft (including data obtained through the 
unauthorized use or access to any media or equipment on which 
electronic data is stored).
    220 Demonstrating, practicing, or using martial arts, boxing 
(except for use of a punching bag), wrestling, or other forms of 
physical encounter, or military exercises or drill (except for drill 
authorized by staff).
    221 Being in an unauthorized area with another person without staff 
permission.
    222 (Not to be used).
    223 (Not to be used).
    224 An assault of any person not involving serious physical injury, 
including non-consensual touching.
    225 Stalking another person through repeated behavior which 
harasses, alarms, or annoys the person, after having been previously 
warned to stop such conduct.
    226 Possession of stolen property.
    227 Refusing to participate in a required physical test or 
examination unrelated to testing for drug abuse (e.g., DNA, HIV, 
tuberculosis).
    228 Body modification (including, but not limited to tattooing and 
piercing); and possession of any paraphernalia and/or tools for the use 
of any form of body modification.) This code shall not be applied to 
acts of self-directed violence (e.g., cutting), nor shall it apply to 
any instance in which an inmate self-directs violence or harm.
    229 (Not to be used).
    230 Possession or use of smoking apparatus and tobacco in any form 
(including, but not limited to, vape devices and other non-conventional 
forms of delivery), or related paraphernalia.
    231 Requesting, demanding, or pressuring an inmate to produce or 
display his/her own court documents or other documents (e.g., PATTERN 
scoresheets) that contain information about the inmate's current or 
prior offense(s) for any unauthorized purpose to another inmate.
    232 Introduction of any unauthorized non-hazardous item or 
contraband. (``Non-hazardous items or contraband'' include, but are not 
limited to, items not likely to facilitate escape; cause serious bodily 
harm to others; or otherwise be hazardous to institutional security or 
personal safety, e.g., food,

[[Page 6468]]

cosmetics, cleaning supplies, unauthorized nutritional/dietary 
supplements.)
    235 Communicating gang affiliation; participating in gang related 
activities; possession of paraphernalia indicating gang affiliation.
    294 Accessing, using, or maintaining social media, or directing 
others to establish or maintain social media accounts on the inmate's 
behalf (including, but not limited to the following: Facebook, Twitter, 
Instagram, Snapchat, TikTok, etc. or any successor).
    295 Use of video visits for abuses other than criminal activity, 
including, but not limited to, conduct which circumvents established 
video visit session monitoring procedures; conduct which permits 
communication with individuals other than the authorized visitors; 
conduct which would be unauthorized if it were to occur in an in-person 
visiting room; or use of the video session to commit or further a High 
category prohibited act.
    296 Use of the mail, including electronic mail and messaging (e.g., 
messaging through the TRULINCS system) for abuses other than criminal 
activity which circumvent mail monitoring procedures (e.g., use of the 
mail or email to commit or further a High category prohibited act, 
special mail abuse; writing letters or messages in code; directing 
others to send, sending, or receiving a letter, mail or email through 
unauthorized means; sending mail or email for other inmates without 
authorization; sending correspondence to a specific address or 
forwarding service with directions to have the correspondence 
forwarded; and using a fictitious return address in an attempt to send 
or receive unauthorized correspondence).
    297 Use of the telephone for abuses other than illegal activity 
which circumvent the ability of staff to monitor frequency of telephone 
use, content of the call, or the number called; or to commit or further 
a High category prohibited act.
    298 Interfering with a staff member in the performance of duties 
most like another High severity prohibited act. This charge is to be 
used only when another charge of High severity is not accurate. The 
offending conduct must be charged as ``most like'' one of the listed 
High severity prohibited acts.
    299 Conduct which disrupts or interferes with the security or 
orderly running of the institution or the Bureau of Prisons most like 
another High severity prohibited act. This charge is to be used only 
when another charge of High severity is not accurate. The offending 
conduct must be charged as ``most like'' one of the listed High 
severity prohibited acts.

Available Sanctions for High Severity Level Prohibited Acts

    A. Recommend parole date rescission or retardation.
    B. Forfeit and/or withhold earned statutory good time or non-vested 
good conduct time up to 50% or up to 60 days, whichever is less, and/or 
terminate or disallow extra good time (an extra good time or good 
conduct time sanction may not be suspended).
    B.1 Disallow ordinarily between 25% and 50% (14-27 days) of good 
conduct time credit available for year (a good conduct time sanction 
may not be suspended).
    B.2 Forfeit up to 27 days of earned FSA Time Credits for each 
prohibited act committed.
    C. Disciplinary segregation (up to 30 days).
    D. Make monetary restitution.
    E. Monetary fine.
    F. Loss of privileges (e.g., visiting, video visits, telephone, 
commissary, movies, recreation, electronic device(s), electronic mail, 
electronic mail and messaging through the TRULINCS system).
    G. Change housing (quarters).
    H. Remove from program and/or group activity.
    I. Loss of job.
    J. Impound inmate's personal property.
    K. Confiscate contraband.
    L. Restrict to quarters.
    M. Extra duty.

Moderate Severity Level Prohibited Acts

    300 (Not to be used).
    301 (Not to be used).
    302 Misuse of authorized medication.
    303 Possession of money or currency, unless specifically 
authorized, or in excess of the amount authorized.
    304 Loaning of property or anything of value for profit or 
increased return.
    305 Possession of anything not authorized for retention or receipt 
by the inmate, and not issued to him through regular channels.
    306 Refusing to work or to accept a program assignment.
    307 Refusing to obey an order of any staff member (may be 
categorized and charged in terms of greater severity, according to the 
nature of the order being disobeyed, e.g., failure to obey an order 
which furthers a riot would be charged as 105, Rioting; refusing to 
obey an order which furthers a fight would be charged as 201, Fighting; 
refusing to provide a urine sample when ordered as part of a drug-abuse 
test would be charged as 110).
    308 Violating a condition of a furlough.
    309 Violating a condition of a community program.
    310 Unexcused absence from work or any program assignment.
    311 Failing to perform work as instructed by the supervisor.
    312 Insolence towards a staff member.
    313 Providing a false statement to a staff member, to include 
feigning illness.
    314 Counterfeiting, forging, or unauthorized reproduction of any 
document, article of identification, money, security, or official paper 
(may be categorized in terms of greater severity according to the 
nature of the item being reproduced, e.g., counterfeiting release 
papers to effect escape, Code 102).
    315 Participating in an unauthorized meeting or gathering.
    316 Being in an unauthorized area without staff authorization.
    317 Failure to follow safety or sanitation regulations (including 
safety regulations, chemical instructions, tools, MSDS sheets, OSHA 
standards).
    318 Using any equipment or machinery without staff authorization.
    319 Using any equipment or machinery contrary to instructions or 
posted safety standards.
    320 Failing to stand count.
    321 Interfering with the taking of count.
    322 (Not to be used).
    323 (Not to be used).
    324 Gambling; possession of gambling paraphernalia; or preparing or 
conducting a gambling pool.
    325 (Not to be used).
    326 (Not to be used).
    327 Unauthorized contacts with the public.
    328 Giving money or anything of value to, or accepting money or 
anything of value from, another inmate or any other person without 
staff authorization.
    329 Destroying, altering, or damaging government property, or the 
property of another person, having a value of $100.00 or less.
    330 Being unsanitary or untidy; failing to keep one's person or 
quarters in accordance with posted standards.
    331 Possession, manufacture, or loss of a non-hazardous item or 
contraband (``non-hazardous item or contraband'' includes, but is not 
limited to, items not likely to be used in an escape; items not likely 
to serve as a weapon capable of doing serious bodily harm to others;

[[Page 6469]]

items not hazardous to institutional security or personal safety; 
unauthorized food, cosmetics, cleaning supplies, and unauthorized 
nutritional/dietary supplements).
    332 (Not to be used).
    333 Fraudulent or deceptive completion of a skills test (e.g., 
cheating on a GED, or other educational or vocational skills test).
    334 Conducting a business; conducting or directing an investment 
transaction without staff authorization.
    335 (Not to be used).
    336 (Not to be used).
    337 Using obscene or abusive language directed at another person or 
people.
    338 Unauthorized conduct in the visiting room (e.g., kissing, 
embracing, etc.).
    396 Use of the mail, including electronic mail and messaging, for 
abuses other than criminal activity which do not circumvent mail or 
email monitoring; or use of the mail or email to commit or further a 
Moderate category prohibited act.
    397 (Not to be used).
    398 Interfering with a staff member in the performance of duties 
most like another Moderate severity prohibited act. This charge is to 
be used only when another charge of Moderate severity is not accurate. 
The offending conduct must be charged as ``most like'' one of the 
listed Moderate severity prohibited acts.
    399 Conduct which disrupts or interferes with the security or 
orderly running of the institution or the Bureau of Prisons most like 
another Moderate severity prohibited act. This charge is to be used 
only when another charge of Moderate severity is not accurate. The 
offending conduct must be charged as ``most like'' one of the listed 
Moderate severity prohibited acts.

Available Sanctions for Moderate Severity Level Prohibited Acts

    A. Recommend parole date rescission or retardation.
    B. Forfeit and/or withhold earned statutory good time or non-vested 
good conduct time up to 25% or up to 30 days, whichever is less, and/or 
terminate or disallow extra good time (an extra good time or good 
conduct time sanction may not be suspended).
    B.1 Disallow ordinarily up to 25% (1-14 days) of good conduct time 
credit available for year (a good conduct time sanction may not be 
suspended).
    B.2 Forfeit up to 27 days of earned FSA Time Credits for each 
prohibited act committed.
    C. Disciplinary segregation (up to 15 days).
    D. Make monetary restitution.
    E. Monetary fine.
    F. Loss of privileges (e.g., visiting, video visits, telephone, 
commissary, movies, recreation, electronic device(s), electronic mail, 
electronic mail and messaging through the TRULINCS system).
    G. Change housing (quarters).
    H. Remove from program and/or group activity.
    I. Loss of job.
    J. Impound inmate's personal property.
    K. Confiscate contraband.
    L. Restrict to quarters.
    M. Extra duty.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                   Low Severity Level Prohibited Acts
------------------------------------------------------------------------
                               (None).
------------------------------------------------------------------------
       Available Sanctions for Low Severity Level Prohibited Acts
------------------------------------------------------------------------
                               (None).
------------------------------------------------------------------------


  Table 2 to Sec.   541.3--Additional Available Sanctions for Repeated Prohibited Acts Within the Same Severity
                                                      Level
----------------------------------------------------------------------------------------------------------------
                                  Time period for
                                   prior offense       Frequency of
 Prohibited act severity level    (same severity     repeated offense        Additional available sanctions
                                 level)  (months)
----------------------------------------------------------------------------------------------------------------
Moderate Severity (300 level).                   6  2nd offense......  1. Disciplinary segregation (up to 15
                                                                        days).
                                                                       2. Forfeit earned SGT or non-vested GCT
                                                                        up to 371/2% or up to 45 days, whichever
                                                                        is less, and/or terminate or disallow
                                                                        EGT (an EGT sanction may not be
                                                                        suspended).
                                                                       3. Forfeit up to 7 days of earned FSA
                                                                        Time Credits (only where the inmate is
                                                                        found to have committed a second
                                                                        violation of the same prohibited act
                                                                        within 6 months.
                                                    3rd or more        1. Any available High Severity Level
                                                     offense within 6   sanction (200 series).
                                                     months.           2. Forfeit up to 14 days of FSA Time
                                                                        Credits (only where the inmate is found
                                                                        to have committed a third violation of
                                                                        the same prohibited act within 6
                                                                        months).
High Severity (200 level).....                  10  2nd offense......  1. Disciplinary segregation (up to 60
                                                                        days).
                                                                       2. Forfeit earned SGT or non-vested GCT
                                                                        up to 75% or up to 90 days, whichever is
                                                                        less, and/or terminate or disallow EGT
                                                                        (an EGT sanction may not be suspended).
                                                    3rd or more        Any available Greatest severity level
                                                     offense.           sanction (100 series).
Greatest Severity (100 level).                  24  2nd or more        Disciplinary segregation (up to 90 days).
                                                     offense.
----------------------------------------------------------------------------------------------------------------

Sec.  541.4  [Amended]

0
5. Amend Sec.  541.4 by removing paragraph (b)(4).
0
6. Amend Sec.  541.5 by revising paragraphs (a), (b) introductory text, 
(b)(2) and (3) to read as follows:


Sec.  541.5  Discipline process.

    (a) Incident report. The discipline process starts when staff 
witness or

[[Page 6470]]

reasonably believe that you committed a prohibited act. An incident 
report describing the incident and the prohibited act(s) you are 
charged with committing will be issued to you, which you will 
ordinarily receive within 24 hours of staff becoming aware of your 
involvement in the incident.
    (b) Investigation. After you receive an incident report, it will be 
investigated.
* * * * *
    (2) Statement. When asked for your statement, you may give an 
explanation of the incident, request any witnesses be interviewed, or 
request that other evidence be obtained and reviewed. However, the 
investigation of the incident report may be suspended before requesting 
your statement if it is being investigated for possible criminal 
prosecution.
    (3) Informally resolving the incident report. The incident report 
may be informally resolved at any stage of the disciplinary process, 
for Moderate Severity Level prohibited acts, or as otherwise required 
by law or these regulations. The incident report will not be removed 
from your discipline records, unless it is informally resolved or 
expunged.
0
7. Amend Sec.  541.7 by revising the section introductory text, 
paragraphs (c) and (f) to read as follows:


Sec.  541.7  Unit Discipline Committee (UDC) review of the incident 
report.

    A Unit Discipline Committee (UDC) will review the incident report 
once the investigation is complete. The UDC's review involves the 
following:
* * * * *
    (c) Timing. The UDC will ordinarily review the incident report 
within five work days after the day staff became aware of the inmate's 
involvement in the incident, not counting the day staff become aware of 
the inmate's involvement, weekends, or holidays. UDC review of the 
incident report may also be suspended if it is being investigated for 
possible criminal prosecution.
* * * * *
    (f) Sanctions. If you committed a prohibited act(s), the UDC can 
impose any of the available sanctions listed in Tables 1 and 2, except 
loss of good conduct sentence credit, FSA Time Credits, disciplinary 
segregation, monetary restitution, or monetary fines.
* * * * *
0
8. Amend Sec.  541.8 by revising paragraph (a)(3) to read as follows:


Sec.  541.8  Discipline Hearing Officer (DHO) hearing.

* * * * *
    (a) * * *
* * * * *
    (3) The incident report will be referred back for further 
investigation, review, disposition, or other action as recommended or 
necessary.
* * * * *
[FR Doc. 2024-01088 Filed 1-31-24; 8:45 am]
BILLING CODE 4410-05-P