[Federal Register Volume 69, Number 126 (Thursday, July 1, 2004)]
[Proposed Rules]
[Pages 39887-39892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14975]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 550

[Docket No. BOP-1109-P]
RIN 1120-AB07


Drug Abuse Treatment Program: Subpart Revision and Clarification

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
amend its regulations on the drug abuse treatment program. We intend 
this amendment to streamline and clarify these regulations, eliminating 
unnecessary text and obsolete language, and removing internal agency 
procedures that need not be in rules text. In this proposed rule, we 
add escape and attempted escape to the list of reasons an inmate may be 
expelled from the Residential Drug Abuse Program (RDAP). With regard to 
our incentive program, offered by some institutions in their 
discretion, we clarify that inmates must meet their financial program 
responsibility obligations and GED responsibilities before being able 
to receive an incentive for RDAP participation. Furthermore, in our 
regulation on considering inmates for early release, we delete obsolete 
language; clarify that inmates sentenced under provisions other than 18 
U.S.C. 227, are ineligible for early release; add as ineligible for 
early release inmates with a prior felony or misdemeanor conviction for 
arson or kidnaping; and clarify that inmates cannot earn early release 
twice.

DATES: Please submit comments only on this rulemaking by August 30, 
2004.

ADDRESSES: Comments should be submitted to Rules Unit, Office of 
General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, 
DC 20534. To ensure proper handling, please reference Docket No. BOP-
1109-P on your correspondence. You may view an electronic version of 
this proposed rule at www.regulations.gov. You may also comment via the 
Internet to BOP at [email protected] or by using the www.regulations.gov 
comment form for this regulation. When submitting comments 
electronically you must include Docket No. BOP-1109-P in the subject 
box.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: The Bureau proposes to amend its regulations 
on drug abuse treatment programs (28 CFR 550) to streamline and clarify 
these regulations, eliminating unnecessary text and obsolete language, 
and removing internal agency procedures that need not be in rules text. 
We are also making some substantive changes to be more inclusive and to 
clarify existing policy and procedure.
    Below, you will find a section-by-section explanation of how we are 
revising our previous regulations in Subpart F on the Drug Abuse 
Treatment Programs. To identify the rules, we will refer first to the 
section number of the old rule as it currently exists in 28 CFR, and 
then we will explain what we did to change that rule. Where we are 
creating a new rule or provision, we will simply refer to it as new.

Section-by-Section Explanation

Sections 550.50 Purpose and Scope, and 550.51 Institutional 
Organization/Staff Roles and Responsibilities

    We consolidated these two sections into a new Sec.  550.50, Purpose 
and Scope. The new regulation merely simplifies language in the 
previous regulation.

Sections 550.52 Admission and Orientation Program, and 550.53 Screening 
and Referral

    We deleted these sections because they related to internal agency 
management procedures and do not benefit or impose a requirement on the 
public or our inmates.
    Specifically, with regard to Sec.  550.52, Admission and 
Orientation program, these procedures are already in the Bureau's 
Program Statement on Admission and Orientation, which requires 
institutions to provide inmates with ``an awareness of'' the 
``institution's program opportunities.'' The Drug Abuse Treatment 
Program (DATP) is an institution program explained to inmates as part 
of our Admission and Orientation procedures.
    Section 550.53 Screening and referral, relates to internal agency 
management procedures particularly because it is our simple direction 
to Bureau psychologists, drug abuse treatment specialists, case 
managers and staff to interview newly-admitted inmates for drug abuse 
problems. While we remove this rule from the CFR, its substance will 
remain in our DATP policy as instruction to staff.

Section 550.54 Drug Abuse Education Course

    We previously published a proposed rule on September 20, 2000 (65 
FR 5684; BOP 1093; RIN 1120-AA88), in which we proposed to revise this 
section. The Bureau intends to publish a final rule based on BOP 1093 
in the future. When we publish the final BOP 1093 rule, we expect to 
clarify and alter the substantive provisions of the rule. In this 
proposed rule (BOP 1109), we do not substantively change the provisions 
of section 550.54, but we are merely redesignating it as the new 
section 550.51.

Section 550.55 Non-Residential Drug Abuse Treatment Program

    We redesignate this rule as Sec.  550.52 and simplify its language. 
We also clarify that non-residential drug abuse treatment services are 
available to inmates who voluntarily decide to participate, and we 
remove several

[[Page 39888]]

eligibility requirements for the program to make it more inclusive. We 
do not impose any new requirements by changing this rule.
    For instance, the rule previously required that inmates have a 
verifiable documented drug abuse problem. Under the new rule, we will 
accept self-reported information as evidence of a drug problem, without 
further verification for the purposes of the non-residential drug abuse 
program. We also removed previous eligibility criteria requiring 
inmates to have ``no serious mental impairment which would 
substantially interfere with or preclude full participation in the 
program,'' and requiring an inmate to ``sign an agreement acknowledging 
his/her program responsibility.''

Section 550.56 Institution Residential Drug Abuse Treatment Program

    We redesignate this section as Sec.  550.53, ``Institution 
residential drug abuse treatment program (RDAP).'' We broke the 
introductory paragraph of current Sec.  550.56 down into subparts to 
more clearly describe the different components of the program. We also 
added language to the admissions criteria clarifying that we will only 
admit to the program inmates who, upon the expiration of their 
sentences, will be released within the United States, or to other such 
places within the United States as authorized and approved.
    Research indicates that combining community based treatment with 
in-prison treatment programs results in the best outcomes. The rates of 
relapse to drug use and recidivism to crime are significantly lower if 
the inmate continues treatment after returning to the community. The 
Bureau, therefore, adopts this approach consistent with the latest 
research findings in the drug addiction field.
    The current Sec.  550.56(a)(4) states that the ``security level of 
the residential program institution must be appropriate for the 
inmate.'' We removed this provision because it is an obvious statement 
and need not be in regulation, as it relates to internal agency 
practice and procedure. In addition, our DATP policy document, which 
provides guidance to staff and is accessible by inmates and the public, 
will retain this language. This will ensure that our staff understand 
that, as with all of our inmates, those that participate in DATP must 
do so consistent with safety and security of the institution.
    To clarify language describing ``completion'' of RDAP, we separated 
what was previously a block paragraph into further subdivisions. We 
also removed language on awarding certificates of achievement because 
it is internal agency practice and procedure and need not be rules 
text. This language also remains part of our staff guidance in our DATP 
policy, along with other suggestions for incentives and rewards for 
participating in the program.
    We also clarified language describing ``withdrawal/expulsion'' by 
reorganizing and breaking block paragraphs into smaller subdivisions. 
We further revised this section to provide that an inmate will be 
immediately expelled, if he/she is found by the Disciplinary Hearing 
Officer (DHO) to have committed a prohibited act involving escape or 
attempted escape. We added escape or attempted escape as a prohibited 
act warranting immediate expulsion because (1) escape is viewed as a 
serious prohibited act in correctional environments; and (2) immediate 
expulsion is intended to deter others from attempting escape.

Section 550.57 Incentives for RDAP Participation

    We redesignated this section as Sec.  550.54. In both the current 
version and the new version of this section, we require inmates to meet 
financial program responsibility obligations under 28 CFR part 545 
before being able to receive an incentive for RDAP participation. In 
our new Sec.  550.54, we also require that inmates meet their GED 
responsibilities under 28 CFR part 544, subpart H before they can 
receive an incentive for RDAP participation under this section.
    This change does not in any way limit an inmate's ability to 
participate in RDAP. This change merely conditions receiving incentives 
on fulfilling GED responsibilities.
    Vocational and educational improvement for RDAP participants is 
critical. The RDAP program incorporates a comprehensive lifestyle 
change philosophy, including elimination of any obstacles that could 
lead an inmate to relapse or recidivism. Therefore, improvements in 
education and vocational skills for the drug involved offender are 
likely to increase his or her chance to lead a productive and drug-free 
lifestyle.

Section 550.58 Consideration for Early Release

    We redesignate this section as Sec.  550.55. In this section, we 
made the following changes:
    Old rule (550.58), Introductory paragraph: In the new Sec.  550.55, 
we redesignated the introductory paragraph as (a), ``Eligibility,'' and 
broke the paragraph into subparagraphs which more clearly set forth 
eligibility criteria. The new subparagraph (a) does not add eligibility 
criteria, but merely restates former eligibility criteria.
    Old rule, subparagraph (a) Additional early release criteria: In 
the new Sec.  550.55, we redesignated this as subparagraph (b), 
``Inmates not eligible for early release,'' as this was a more accurate 
description of the substance of this subparagraph.
    Arson and kidnaping. We also add language to make inmates with a 
prior felony or misdemeanor conviction of arson or kidnaping ineligible 
for early release. In implementing the early release incentive program 
over the past five years, we concluded that arson and kidnaping are 
serious offenses which we had not previously identified. Also, the 
Federal Bureau of Investigations (FBI) Uniform Crime Reporting Program 
(UCR), which tracks all of the other offenses listed in new 
subparagraph (b)(5), lists arson and kidnaping as serious ``Group A'' 
offenses. (See http://www.fbi.gov/ucr/faqs.htm for more information on 
the Uniform Crime Reporting Program.)
    Furthermore, in Lopez v. Davis, et al., 121 S.Ct. 714 (2001), the 
Supreme Court upheld the Director's discretion under 18 U.S.C. 3621(e) 
in identifying inmates not eligible for early release. We are, 
therefore, adding these offenses to this category of inmates not 
eligible for early release.
    New rule: New subparagraph (b)(5)(i): Prior felony or misdemeanor 
conviction for homicide. We also clarify that inmates will be precluded 
from receiving early release consideration if they have a prior felony 
or misdemeanor conviction for homicide, including deaths caused by 
recklessness, but not including deaths caused by negligence or 
justifiable homicide. In doing so, we clarify the type of past 
conviction for homicide that will preclude early release consideration. 
This is not a new requirement. It is merely a clarification of our 
existing policy and philosophy.
    In addition to murder and non-negligent manslaughter, homicides 
also include those caused by recklessness. Often, homicides caused by 
recklessness are general intent crimes. Because of the serious nature 
of this crime, the Director chooses to preclude these offenses from 
early release consideration. Inmates will still be eligible for early 
release, however, if they committed homicides found to be negligent or 
justifiable.
    New rule: New subparagraph (b)(7): Inmates who have been convicted 
of an attempt, conspiracy, or other crime which involved an underlying 
offense to commit any crime listed in Section

[[Page 39889]]

(b)(5) and (b)(6). By adding this new provision, we intend to mirror 
the common theory in law that an individual is accountable when he or 
she has planned with others to commit a particular crime or tried but 
did not succeed in committing a crime.
    New rule: New subparagraph (b)(9): Inmates who have previously 
earned an early release under 18 U.S.C. 3621(e): In the new rule, we 
added this subparagraph to exempt from early release consideration 
inmates who previously earned early release under 18 U.S.C. 3621(e).
    Congress created the early release incentive to motivate drug 
addicted inmates to enter residential drug abuse treatment who would 
not do so without this incentive. However, in our discretion, it is not 
appropriate to provide this incentive for inmates who completed RDAP, 
gained early release, but failed to remain drug and crime free. To 
provide this incentive to the same inmate twice would be counter to our 
drug treatment philosophy that inmates must be held accountable for 
their actions when released to the community.
    This is not a new requirement. It is merely a clarification of our 
existing policy and philosophy. In fact, since implementation of the 
early release statute in June 1995, we have not granted early release 
to an inmate more than once.
    Old rule, subparagraph (a)(2): When we first implemented the early 
release incentive in June 1995, we anticipated that a few inmates who 
had completed BOP residential drug abuse programs before 1989 would 
apply for early release. We therefore developed this subparagraph to 
explain their eligibility. Also, because the 18 U.S.C. 3621(e) statute 
defined minimum standards for residential drug program completion, we 
wanted to ensure that inmates who did complete residential drug 
programs before 1989 met the statutory definition of residential 
treatment and, subsequently, were of uniform good behavior. We 
therefore developed and implemented regulations, as necessary before we 
could grant early release to this group of inmates (see old rule, 
550.58 (a)(2)(i-iv).
    Since then, there has not been a case where an inmate who completed 
a residential drug program before October 1, 1989 applied for early 
release. Therefore, rules language that divided an inmate's 
participation either before or after October 1, 1989 is no longer 
necessary. We therefore delete this subparagraph.
    Old rule, subparagraph (b), Application Procedures: In the new 
rule, we delete this subparagraph on application procedures because 
application procedures in early release are no longer necessary. The 
procedures in the old rule related to the 1989 division (see previous 
paragraph). This subparagraph is unnecessary because we currently have 
policy, procedures, and forms in place to automatically review the 
early release status before an inmate is placed on the waiting list.
    Old rule, subparagraph (c), Length of Reduction: In the new rule, 
Sec.  550.55, we designate this subparagraph as (c), ``Length of 
Reduction of Sentence.'' We also delete former (c)(2), which read: ``If 
the inmate has less than 12 months to serve after completion of all 
required transitional services, the amount of reduction may not exceed 
the amount of time left on service of sentence.''
    We view it as self-evident that we cannot reduce an inmate's 
sentence beyond the time the inmate has left to serve. We therefore 
delete this provision as unnecessary.
    In the new Sec.  550.55(c)(2), we add new language explaining that, 
under the Director's discretion allowed by 18 U.S.C. 3621(e), we may 
limit the amount of reduction in sentence based upon the length of 
sentence imposed by the Court.

Section 550.59 Community Transitional Drug Treatment Services

    We redesignate this section as Sec.  550.56. To clarify our 
transitional drug abuse treatment (TDAT), we reorganized and separated 
what was previously several block paragraphs into further subdivisions. 
We also eliminated unnecessary and complex language. We do not intend 
to modify the substance of this section or any requirements imposed by 
this section.

Section 550.60 Inmate Appeals

    We redesignate this section as Sec.  550.57. In the new Sec.  
550.57, we clarify language that currently appears in Sec.  550.60(a) 
which generally states that an inmate may seek formal review of a 
complaint relating to any aspect of an inmate's confinement (including 
the operation of the drug abuse treatment programs) by using the 
Administrative Remedy Program (28 CFR part 542, subpart B).
    Also, current Sec.  550.60(b) states that, to expedite staff 
response, inmates previously found eligible for early release must 
indicate in the first sentence of the Administrative Remedy request 
that the request affects the inmate's early release. In the new Sec.  
550.57, we delete this provision, as it appears to dictate how inmates 
should write their appeals. We remove this requirement to afford 
inmates broader latitude in composing and drafting their Administrative 
Remedy request as they wish.

Where To Send Comments

    You can send written comments on this rule to the Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First Street, NW., 
Washington, DC 20534.
    We will consider comments we receive during the comment period 
before we take final action. We will try to consider comments we 
receive after the end of the comment period. In light of comments we 
receive, we may change the rule.
    We do not plan to have oral hearings on this rule. All the comments 
we receive remain on file for public inspection at the above address.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'', section 
1(b), Principles of Regulation. The Director, Bureau of Prisons has 
determined that this rule is not a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), and accordingly this rule 
has not been reviewed by the Office of Management and Budget.
    In particular, the Bureau has assessed the costs and benefits of 
this rule as required by Executive Order 12866 Section 1(b)(6) and has 
made a reasoned determination that the benefits of this rule justify 
its costs. Clarifying and streamlining this rule and eliminating 
unnecessary text and obsolete language will have the benefit of easier 
readability and improved understanding of our drug treatment programs. 
We strengthen the program by calculated revisions designed to allow 
inmates to succeed in drug treatment while avoiding expending resources 
unnecessarily.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Under Executive Order 13132, this rule 
does not have sufficient federalism implications for which we would 
prepare 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.

[[Page 39890]]

By approving it, the Director certifies that it will not have a 
significant economic impact upon a substantial number of small entities 
because: This rule is about the correctional management of offenders 
committed to the custody of the Attorney General or the Director of the 
Bureau of Prisons, and its economic impact is limited to the Bureau's 
appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not cause State, local and tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not significantly or uniquely affect small governments. We do 
not need to take action under the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

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

List of Subjects in 28 CFR Part 550:

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.
    Under the rulemaking authority vested in the Attorney General in 5 
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
propose to amend part 550 in subchapter C of 28 CFR, chapter V as 
follows.

Subchapter C--Institutional Management

PART 550--DRUG PROGRAMS

    1. Revise the authority citation for part 550 to read as follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 
4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984 as to offenses committed after that date), 5039; 21 U.S.C. 
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 
U.S.C. Chapter 223).

Subpart F--Drug Abuse Treatment Program

    2. Revise Subpart F to read as follows:
Sec.
550.50 Purpose and scope.
550.51 Drug abuse education course.
550.52 Non-residential drug abuse treatment services.
550.53 Institution Residential Drug Abuse Treatment Program (RDAP).
550.54 Incentives for RDAP participation.
550.55 Eligibility for early release.
550.56 Community Transitional Drug Abuse Treatment Program (TDAT).
550.57 Inmate appeals.


Sec.  550.50  Purpose and scope.

    The purpose of this subpart is to describe the Bureau's drug abuse 
treatment programs. All Bureau institutions have a drug abuse treatment 
specialist who, under the Drug Abuse Program Coordinator's supervision, 
provides drug abuse education and non-residential drug abuse treatment 
services to the inmate population. Institutions with residential drug 
abuse treatment programs (RDAP) should have additional drug abuse 
treatment specialists to provide treatment services in the residential 
drug abuse treatment program unit.


Sec.  550.51  Drug abuse education course.

    (a) Purpose of the Drug Abuse education course. All institutions 
provide a drug abuse education course to:
    (1) Inform inmates of the consequences of drug/alcohol abuse and 
addiction; and
    (2) Motivate inmates needing drug abuse treatment to apply for 
further drug abuse treatment, both while incarcerated and after 
release.
    (b) Course Placement. (1) Staff give primary consideration for 
course placement to an inmate sentenced or returned to custody as a 
violator after September 30, 1991, when unit and/or drug abuse 
treatment staff determine, through interviews and file review that:
    (i) There is evidence that alcohol or other drug use contributed to 
the commission of the inmate's offense;
    (ii) Alcohol or other drug use was a reason for violation either of 
supervised release, including parole, or Bureau community status for 
which the inmate is now incarcerated;
    (iii) The inmate was recommended for drug programming (or an 
evaluation for drug programming) during incarceration by the sentencing 
judge;
    (iv) There is evidence of a history of alcohol or other drug use.
    (2) Staff may also consider for course placement an inmate who 
requests to participate in the drug abuse education program but who 
does not meet the criteria of paragraph (b)(1) of this section.
    (3) Staff may not consider an inmate for course placement if the 
inmate:
    (i) Does not have enough time remaining to serve to complete the 
course;
    (ii) Volunteers for, enters or otherwise completes a residential 
drug abuse treatment program (RDAP), or
    (iii) Completes a structured drug abuse treatment program at one of 
the Bureau's Intensive Confinement Centers (ICC).
    (c) Inmate Consent. We will only admit inmates to the drug abuse 
education course if they agree to comply with all Bureau requirements 
for the program.
    (d) Completion. To complete the drug abuse education course, an 
inmate must attend and participate during course sessions and pass a 
final course exam. We will ordinarily give inmates at least three 
chances to pass the final course exam before the inmate loses 
privileges or we invoke effects of non-participation (see paragraph (e) 
of this section).
    (e) Effects of non-participation. (1) If an inmate considered for 
placement under paragraph (b)(1) of this section refuses participation, 
withdraws, is expelled, or otherwise fails to meet attendance and 
examination requirements, that inmate:
    (i) Is not eligible for performance pay above maintenance pay 
level, or for bonus pay, or vacation pay;
    (ii) Is not eligible for a Federal Prison Industries work program 
assignment (unless the Warden makes exception on the basis of work 
program labor needs);
    (iii) Is not eligible for community programs.
    (2) The Warden may make exceptions to the provisions of this 
section for good cause with reasons for such exceptions documented in 
writing.


Sec.  550.52  Non-residential drug abuse treatment services

    All institutions must have non-residential drug abuse treatment 
services, provided through the institution's Psychology Services 
department. These services are available to inmates who voluntarily 
decide to participate.


Sec.  550.53  Institution Residential Drug Abuse Treatment Program 
(RDAP).

    (a) RDAP. The institution RDAP, available at some Bureau 
institutions, has the following components:
    (1) Unit-based component: Inmates must complete a course of 
activities provided by drug abuse treatment specialists and the Drug 
Abuse Program Coordinator in a treatment unit set apart from the 
general prison population. This component must last at least 500 hours 
over a six to twelve-month period.
    (2) Follow-up services. If time allows between completion of the 
unit-based

[[Page 39891]]

component of the program and transfer to a community-based program, the 
inmate must participate in the follow-up services to the unit-based 
component of the residential drug abuse treatment program.
    (3) Transitional drug abuse treatment (TDAT) program component. 
Inmates must complete drug abuse treatment in a community-based 
program.
    (b) Admission Criteria. An inmate must meet all of the following 
criteria to be admitted into RDAP.
    (1) The inmate must have a verifiable, documented substance use 
disorder.
    (2) The inmate must sign an agreement acknowledging his/her program 
responsibility.
    (3) Upon the expiration of his/her sentence, the inmate will be 
released within the United States, or to other such place within the 
United States as authorized and approved.
    (c) Application to RDAP. An inmate may apply for the RDAP by 
submitting a request to a staff member (ordinarily, a member of the 
inmate's unit team or the Drug Abuse Program Coordinator).
    (d) Referral to RDAP. Unit or drug treatment staff may identify an 
inmate for referral and evaluation for RDAP.
    (e) Placement in RDAP. The Drug Abuse Treatment Coordinator decides 
whether to place an inmate in RDAP based on the criteria set forth in 
paragraph (b) of this section.
    (f) Completing the unit-based component of RDAP. To complete the 
unit-based component of RDAP, an inmate must:
    (1) Have satisfactory attendance and participation in all RDAP 
activities; and
    (2) Pass each RDAP testing procedure. Ordinarily, we will allow an 
inmate who fails any RDAP exam to retest one time.
    (g) Expulsion from RDAP. (1) The Drug Abuse Program Coordinator may 
remove an inmate from the program because of disruptive behavior 
related to the program or unsatisfactory progress in treatment.
    (2) Ordinarily, staff must provide an inmate with at least one 
formal warning before removing the inmate from RDAP. A formal warning 
is not necessary when the inmate's documented lack of compliance with 
program standards is of such magnitude that his or her continued 
presence would create an immediate and ongoing problem for staff and 
inmates.
    (3) Staff will remove an inmate from RDAP immediately if the DHO 
finds that the inmate has committed a prohibited act involving:
    (i) Alcohol or drugs;
    (ii) Violence or threats of violence;
    (iii) Escape or attempted escape; or
    (iv) Any 100-level series incident.
    (h) Effects of non-participation. (1) If an inmate refuses to 
participate in RDAP after being selected by the Drug Abuse Program 
Coordinator for treatment at an institution that authorizes enhanced 
incentives under Sec.  550.54(a)(2), or withdraws or is otherwise 
removed from RDAP, the inmate is not eligible for:
    (i) A furlough (other than possibly an emergency furlough);
    (ii) More than 90 days community-based program placement;
    (iii) Performance pay above maintenance pay level, bonus pay, or 
vacation pay; and/or
    (iv) A Federal Prison Industries work program assignment (unless 
the Warden makes exception on the basis of work program labor needs).
    (2) Where applicable, staff will notify the United States Parole 
Commission of the inmate's need for treatment and the inmate's failure 
to participate in the residential drug abuse treatment program.


Sec.  550.54  Incentives for RDAP participation.

    (a) An inmate may receive incentives for his or her satisfactory 
participation in the RDAP. Institutions may offer the basic incentives 
described in paragraph (a)(1) of this section. Bureau-authorized 
institutions may also offer enhanced incentives as described in 
paragraph (a)(2) of this section.
    (1) Basic incentives. (i) Limited financial awards, based upon the 
inmate's achievement/completion of program phases.
    (ii) Consideration for the maximum period of time (currently 180 
days) in a community-based treatment program, if the inmate is 
otherwise eligible.
    (iii) Local institution incentives such as preferred living 
quarters or special recognition privileges.
    (iv) Early release, if eligible under Sec.  550.55.
    (2) Enhanced incentives. (i) Tangible achievement awards as 
permitted by the Warden and allowed by the regulations governing 
personal property (see 28 CFR part 553).
    (ii) Photographs of treatment ceremonies may be sent to the 
inmate's family.
    (iii) Formal consideration for a nearer release transfer for medium 
and low security inmates.
    (b) An inmate must meet his/her financial program responsibility 
obligations (see 28 CFR part 545) and GED responsibilities (see 28 CFR 
part 544, subpart H) before being able to receive an incentive for his/
her RDAP participation.
    (c) If an inmate withdraws from or is otherwise removed from RDAP, 
that inmate may lose incentives he/she previously achieved.


Sec.  550.55  Eligibility for early release.

    (a) Eligibility. An inmate may be eligible for early release by a 
period not to exceed 12 months if that inmate:
    (1) Was sentenced to a term of imprisonment under 18 U.S.C. Chapter 
227, Subchapter D for a nonviolent offense;
    (2) Is determined by Bureau staff to have a substance abuse 
problem; and
    (3) Completes a residential drug abuse treatment program 
successfully, as defined by the Bureau, during his or her current 
commitment.
    (b) Inmates not eligible for early release. As an exercise of the 
Director's discretion, the following categories of inmates are not 
eligible for early release:
    (1) BICE detainees;
    (2) Pretrial inmates;
    (3) Contractual boarders (for example, State, or military inmates);
    (4) Inmates sentenced under provisions other than 18 U.S.C. Chapter 
227;
    (5) Inmates who have a prior felony or misdemeanor conviction for:
    (i) Homicide (including deaths caused by recklessness, but not 
including deaths caused by negligence or justifiable homicide),
    (ii) Forcible rape,
    (iii) Robbery,
    (iv) Aggravated assault,
    (v) Arson,
    (vi) Kidnaping; or
    (vii) A crime that by its nature or conduct involves sexual abuse 
offenses committed upon minors;
    (6) Inmates who have a current felony conviction for:
    (i) A crime that has as an element, the actual, attempted, or 
threatened use of physical force against the person or property of 
another,
    (ii) A crime that involved the carrying, possession, or use of a 
firearm or other dangerous weapon or explosives (including any 
explosive material or explosive device), or
    (iii) A crime that by its nature or conduct, presents a serious 
potential risk of physical force against the person or property of 
another, or
    (iv) A crime that by its nature or conduct involves sexual abuse 
offenses committed upon minors;
    (7) Inmates who have been convicted of an attempt, conspiracy, or 
other crime which involved an underlying offense to commit any crime 
listed in paragraph (b)(5) and/or (b)(6) of this section.
    (8) Inmates who are not eligible for participation in a community-
based program as determined by the Warden on the basis of his or her 
professional discretion; or

[[Page 39892]]

    (9) Inmates who have previously earned an early release under 18 
U.S.C. 3621(e).
    (c) Length of reduction of sentence. (1) An inmate approved for 
early release may receive a reduction of up to 12 months of the term of 
incarceration, except as provided in paragraphs (c)(2) and (3) of this 
section.
    (2) Under the Director's discretion allowed by 18 U.S.C. 3621(e), 
we may limit the length of reduction in sentence based upon the length 
of sentence imposed by the Court.
    (3) If the inmate cannot fulfill his or her community-based 
treatment obligations by the presumptive release date, the Community 
Corrections Regional Administrator may adjust the provisional release 
date by the least amount of time necessary to allow the inmate to 
fulfill his or her treatment obligations.


Sec.  550.56  Community Transitional Drug Abuse Treatment Program 
(TDAT).

    (a) For an inmate to successfully complete all components of RDAP, 
the inmate must participate in TDAT in the community. If an inmate 
refuses or fails to complete TDAT, that inmate fails the RDAP and is 
disqualified for any additional incentives.
    (b) We may require an inmate with a documented drug abuse problem 
who did not choose to volunteer for RDAP to participate in TDAT as a 
condition of participation in a community-based program, with the 
approval of the Transitional Drug Abuse Treatment Coordinator.
    (c) An inmate who successfully completes a RDAP and who 
participates in TDAT at an institution must participate in TDAT for at 
least one hour per month.


Sec.  550.57  Inmate appeals.

    You may seek formal review of a complaint regarding the operation 
of DATP by using administrative remedy procedures in 28 CFR part 542, 
subpart B.

[FR Doc. 04-14975 Filed 6-30-04; 8:45 am]
BILLING CODE 4410-05-P