[Federal Register Volume 70, Number 142 (Tuesday, July 26, 2005)]
[Proposed Rules]
[Pages 43093-43105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14637]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 541

[Docket No. BOP-1118-P]
RIN 1120-AB18


Inmate Discipline Rules: 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 Inmate Discipline and Special Housing Unit (SHU) regulations. 
We intend this amendment to streamline and clarify these regulations,

[[Page 43094]]

eliminating unnecessary text and obsolete language and removing 
internal agency procedures that need not be in rules text. We also make 
some substantive changes to our list of prohibited acts for which 
disciplinary sanctions may be imposed and alter the list of possible 
sanctions available to allow Disciplinary Hearing Officers more 
flexibility in adapting the sanction to fit the seriousness of the 
violation.

DATES: Please submit comments by September 26, 2005.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534. You may also comment via 
the Internet to BOP at [email protected] or by using the http://www.regulations.gov comment form for this regulation. When submitting 
comments electronically you must include the BOP Docket No. in the 
subject box.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: The Bureau proposes to amend its inmate 
discipline and special housing unit (SHU) regulations (28 CFR part 541, 
subpart A and subpart B) 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 also make 
some substantive changes to our list of prohibited acts for which 
disciplinary sanctions may be imposed and alter the list of possible 
sanctions available to allow Disciplinary Hearing Officers more 
flexibility in adapting the sanction to fit the seriousness of the 
violation.
    Below, you will find a section-by-section explanation of how we are 
revising our previous regulations in subpart A and subpart B on Inmate 
Discipline.
    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

    Section 541.2 Definitions. This rule contains definitions of 
Investigating Officer, Unit Disciplinary Committee (UDC), Discipline 
Hearing Officer (DHO), and Segregation Review Official (SRO). In this 
proposed rule, we remove this regulation and integrate the definitions 
into the sections discussing the discipline process and special housing 
units. You can find a definition of Investigating Officer in new Sec.  
541.05, UDC in new Sec.  541.07, DHO in new Sec.  541.08, and a 
description of the SRO's duties in new Sec.  541.26.
    Section 541.10 Purpose and scope. Paragraph (a) of former Sec.  
541.10 is streamlined and encompassed in the new Sec.  541.01. We have 
deleted paragraph (b), regarding principles staff must follow when 
taking disciplinary action, because it is redundant and is covered by 
several of our new rules, including new Sec. Sec.  541.01 and 541.06-
541.08. We will maintain general principles for staff in Bureau policy.
    Section 541.11 Notice to inmate of Bureau of Prisons rules. We have 
deleted this section because it relates solely to internal agency 
practice and procedures which we retain in Bureau policy on the 
Admission and Orientation program. We also remove Tables 1 and 2, 
Summary of Disciplinary System and Time Limits in the Disciplinary 
Process, because they are redundant and because we retain it as part of 
Admission and Orientation materials which we provide to all inmates. We 
also explain the process and time limits elsewhere in the new 
disciplinary rules.
    Further, in our new Sec.  541.02, we explain to whom the 
disciplinary process applies. Specifically, we explain that the inmate 
discipline program applies to sentenced and unsentenced inmates in 
Bureau custody, as well as sentenced and unsentenced inmates designated 
to non-Bureau facilities, for example, contract facilities, for whom 
the Bureau is responsible.
    Section 541.12, Inmate Rights and Responsibilities. We remove this 
section as redundant because we explain elsewhere in the disciplinary 
rules that the inmate has the responsibility of adhering to the various 
Bureau rules alluded to in this section, as explained below. We will 
retain language in this section as a handout during the Admission and 
Orientation process.
    This list was informal, at best, and was more of a shorthand 
vehicle to give inmates a general overview of the Bureau's rules. It 
was never intended to be a source of law, and, in fact, inadequately 
describes inmate rights. Each inmate right on the list is more fully 
and accurately described elsewhere in 28 CFR Chapter V. Inmates are 
better informed by going directly to the Bureau rules, which are 
significant, detailed sources of law, than by using an inadequate and 
inaccurate list.
    Below, we identify where each right on the list is discussed more 
thoroughly elsewhere in the Bureau's rules.
     ``1. You have the right to expect that as a human being 
you will be treated respectfully, impartially, and fairly by all 
personnel.'' The inmate's right to expect fair and impartial treatment 
is found in 28 CFR 551.90, which states as follows: ``Bureau staff 
shall not discriminate against inmates on the basis of race, religion, 
national origin, sex, disability, or other political belief. This 
includes the making of administrative decisions and providing access to 
work, housing and programs.''
     ``2. You have the right to be informed of the rules, 
procedures, and schedules concerning the operation of the 
institution.'' The inmate's right to information is found in mandatory 
guidance to staff in our policy on Admission and Orientation, under 
which inmates will receive a copy of the rights & responsibilities 
chart removed from rules.
     ``3. You have the right to freedom of religious 
affiliation, and voluntary religious worship.'' The inmate's right to 
freedom of religion is found in 28 CFR part 548, Religious Services.
     ``4. You have the right to health care, which includes 
nutritious meals, proper bedding and clothing, and a laundry schedule 
for cleanliness of the same, an opportunity to shower regularly, proper 
ventilation for warmth and fresh air, a regular exercise period, toilet 
articles and medical and dental treatment.'' These inmate rights are 
generally required by 18 U.S.C. 4042(a)(2), which requires the Bureau 
to ``provide for the safekeeping, care and subsistence'' of inmates. 
Medical Services regulations are in 28 CFR part 549. Grooming, 
clothing, and hygiene regulations are in 28 CFR part 551 (Subpart A). 
Also, see 28 CFR part 544, Subpart D, Inmate Recreation Programs.
     ``5. You have the right to visit and correspond with 
family members, and friends, and correspond with members of the news 
media in keeping with Bureau rules and institution guidelines.
     ``6. You have the right to unrestricted and confidential 
access to the courts by correspondence (on matters such as the legality 
of your conviction, civil matters, pending criminal cases, and 
conditions of your imprisonment).
     ``7. You have the right to legal counsel from an attorney 
of your choice by interviews and correspondence.''
    These inmate rights are found in 28 CFR part 540, Contact with 
Persons in the Community, which contains regulations regarding visiting 
and correspondence, including legal mail and visiting.
     ``8. You have the right to participate in the use of law 
library reference

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materials to assist you in resolving legal problems. You also have the 
right to receive help when it is available through a legal assistance 
program.'' These inmate rights are discussed at length in our 
regulations on Legal Matters, 28 CFR part 543.
     ``9. You have the right to a wide range of reading 
materials for educational purposes and for your own enjoyment. These 
materials may include magazines and newspapers sent from the community, 
with certain restrictions.'' Inmate rights to reading materials and 
incoming publications are found in 28 CFR part 540, subpart F, Incoming 
Publications, and part 544, subpart I, Education, Training and Leisure-
Time Program Standards, and subpart K, Inmate Library Services.
     ``10. You have the right to participate in education, 
vocational training and employment as far as resources are available, 
and in keeping with your interests, needs, and abilities.'' Inmate 
rights to education, training and employment are found in 28 CFR part 
544, regarding Education programs and part 545, subpart C, regarding 
work and compensation.
     ``11. You have the right to use your funds for commissary 
and other purchases, consistent with institution security and good 
order, for opening bank and/or savings accounts, and for assisting your 
family.'' See 28 CFR part 545, subpart B, regarding the Inmate 
Financial Responsibility Program. In particular, see Sec.  545.10, in 
which the Bureau encourages inmates to meet financial obligations 
through the inmate financial responsibility program. Once more, this 
program assumes the inmate's right to use their funds, consistent with 
security and good order.
    In sum, every provision in the list of inmate rights is further 
described and developed elsewhere in Bureau regulations. Further, the 
existence of this list in the rules is misleading, as its presence 
assumes that this is a finite list of inmate rights. By eliminating 
this list, we encourage inmates and the public to look at the rules as 
a whole to get a better picture of inmate rights and responsibilities.
    Furthermore, this list implies that these rights are rules in and 
of themselves, whereas they are only absolute as long as they are 
consistent with the Bureau's actual rules. If an inmate reviews the 
Bureau rules as a whole, that inmate will get a clearer statement of 
law than by reviewing a terse and inadequate list.
    Section 541.13, Prohibited acts and disciplinary severity scale. 
Much of this regulation provided technical guidance to Disciplinary 
Hearing Officers (DHO) and Unit Disciplinary Committees (UDC) regarding 
types of sanctions, how to impose them, and which sanctions could apply 
to which inmates. We removed these provisions because they are guidance 
to Bureau staff, and as internal agency practice, need not be in rules 
text. We retain thorough guidance to staff on imposing sanctions in 
Bureau disciplinary policy.
    However, in new Sec.  541.03, we retain former Table 3, Prohibited 
Acts and Disciplinary Severity Scale, as new Table 1, revised for 
clarity. This comprehensive table explains in detail all the prohibited 
acts in each of the four severity categories (Greatest [prohibited act 
series 100], High [prohibited act series 200], Moderate [prohibited act 
series 300] and Low [prohibited act series 400]) and lists available 
sanctions that might be imposed for commission of each of these types 
of prohibited acts. We also made the following changes to this table:
     We establish Greatest and High severity level prohibited 
acts specifically for sexual assault of any person. Both require non-
consensual touching. The Greatest severity level act (114) requires the 
use or threat of force. The High severity level act (229) is for 
incidents without the use or threat of force. These codes were created 
to more specifically place inmates on notice of prohibited behavior.
     We increased the severity level of escapes from non-secure 
facilities from a 200 (High) to a 100 (Greatest) level prohibited act. 
In making this change, we eliminate the false implication that escapes 
from non-secure facilities are not a serious concern.
     We amended prohibited act code 104 (possession of a 
weapon) to include possession of ``any instrument used as a weapon.'' 
This terminology change was prompted by the caselaw decision in Wallace 
v. Nash, 311 F.3d 140 (2d Cir. 2002), which found the current 
prohibited act did not place inmates on sufficient notice that 
possession of any instrument actually used as a weapon may be 
disciplined under this section.
     We establish a new prohibited act code, 115, for 
destroying and/or disposing of any item during a search or attempt to 
search. We make this change to more specifically place inmates on 
notice of this prohibited behavior, which significantly inhibits staff 
ability to locate and monitor the introduction and possession of 
contraband within prison institutions.
     We establish a High severity level prohibited act code for 
escape from a work detail, non-secure institution, or other non-secure 
custody, including a community facility, with subsequent voluntary 
return to Bureau of Prisons custody within 4 hours. We make this change 
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.
     We clarify that possession of a cellular telephone or 
other electronic communications device is a Greatest level prohibited 
act. We make this change to incorporate technological advances that 
were not present when the current rule was drafted.
     We increase the severity of all alcohol-related offenses 
from a High to a Greatest prohibited act. We make this change to 
reflect the parity between using alcohol and other illicit substances 
as disruptive prison behaviors.
     We establish a High severity level prohibited act code for 
stalking to take into account the growing problem of female staff being 
stalked by male inmates. There were far fewer female staff members in 
prisons when the current rule was drafted.
     We establish a High severity level prohibited act code for 
possession of stolen property. Under 28 CFR Sec.  553.10, inmates are 
only allowed to possess property that is authorized and/or given to the 
inmate by institution staff. Therefore, the only way for an inmate to 
possess unauthorized property is if it is acquired through an 
unauthorized channel. All inmate property must be cataloged and 
accounted for by institution staff. Therefore, if an inmate is in 
possession of property that was stolen by another inmate, that inmate 
is just as culpable as the one who stole it, because the inmate in 
possession of the stolen property was under an obligation to report it 
to institution staff. Any unauthorized or unreported property is 
considered contraband.
     We establish a Moderate severity level prohibited act code 
for circulating a petition to specifically place inmates on notice that 
such conduct is prohibited. The only approved 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 enjoy three levels of review (at 
the institution, at the Regional level, and at the Bureau's Central 
Office). Inmate petitions are prohibited because inmates acting as a 
group against prison management pose a special risk of disruption which 
does not exist through the sanctioned, individual administrative remedy 
complaint system. Circulating a petition

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would undermine the effectiveness and legitimacy of the Administrative 
Remedy Program and potentially provide inmates with both a rallying 
issue and a leader to threaten staff control in an unsanctioned and 
potentially uncontrollable manner.
     We establish a High severity level prohibited act code for 
refusing to participate in a required physical test or examination 
unrelated to testing for drug abuse (e.g., DNA, HIV, tuberculosis). On 
December 19, 2000, Congress enacted Public Law 106-546, commonly 
referred to as the DNA Analysis Backlog Elimination Act of 2000 (Act). 
This Act requires the Bureau to collect DNA samples from individuals 
convicted of a qualifying federal offense, military offense, or DC Code 
offense. The FBI is required to analyze the samples and maintain the 
information in the Combined DNA Index System (CODIS). Because we are 
required to do this by statute, we need to have specific capability to 
discipline inmates who jeopardize our compliance with the statute. 
Also, physical tests such as those which detect HIV or tuberculosis are 
necessary to protect the health and safety of the inmates being tested, 
the inmate population, and Bureau staff. We need to be able to 
discipline those who, in refusing to be tested, would jeopardize the 
safety and security of the institution.
     We increase the severity level for tattooing and self-
mutilation from a Low Moderate to a High severity prohibited act. This 
change is necessary due to the increased risk to staff and inmates of 
exposure to blood-borne pathogens.
     We establish a Moderate severity level prohibited act code 
for the fraudulent or deceptive completion of a skills test. This 
change is necessary to emphasize the seriousness of the prohibited act. 
Cheating on tests such as those necessary for GED completion or English 
as a Second Language jeopardize the credibility of the Bureau's test-
taking process, thereby threatening the Bureau's authority and 
capability to conduct such tests and programs related to these tests. 
We currently discipline for this act by using other codes, such as 313, 
lying or giving a false statement to a staff member. Having a separate 
code for this act more effectively addresses the growing problem of 
fraudulent or deceptive completion of a skills test by placing inmates 
on notice that this specific act is prohibited.
     We increase the severity level for conducting a business 
from a Low Moderate to a Moderate severity prohibited act. Raising the 
severity level for this offense more effectively reflects the growing 
problem and seriousness of inappropriate inmate activity related to 
conducting a business by placing inmates on notice that this specific 
act is prohibited.
     We establish a Moderate severity level prohibited act code 
for communicating gang affiliation. This change is necessary to provide 
inmates with notice that illegal gang activity will not be tolerated. 
Since the drafting of the current codes, we have had a growing concern 
with increased incidents of disruption caused by gang activity in 
Bureau institutions. This code allows us to discipline for actions 
which jeopardize the safety and security of the institution, and is an 
outgrowth of our increased knowledge of how gangs operate.
     We establish prohibited acts at the Greatest, High, and 
Moderate severity levels for abuse of the mail, both to reflect the 
increased seriousness of abusing the mail for committing criminal 
offenses and mail fraud, and to be consistent with telephone prohibited 
act codes.
     We establish a new sanction of ``monetary fine.'' We made 
this change to provide DHOs with the flexibility to sanction inmates by 
imposing monetary fines as a punishment and deterrent to committing 
prohibited acts. Additionally, by providing another sanctioning option, 
DHOs are better able to tailor the discipline of individual inmates' in 
a manner best suited to affect behavioral changes. We also clarify that 
the sanctions of ``make monetary restitution'' and ``monetary fine'' 
may only be imposed by DHOs.
     We delete the available formal sanctions of ``reprimand'' 
and ``warning,'' although they will be retained as possible forms of 
informal resolution in the revised policy.
    We delete former Table 4, Sanctions, because it merely details 
sanctions listed in the Prohibited Acts and Disciplinary Severity Scale 
table for the benefit of DHOs and UDCs. Because this is guidance to 
staff on how to impose sanctions, it is not required to be rules text. 
However, in each severity category's list of available sanctions, we 
increase the maximum amount of time an inmate can be sanctioned to 
disciplinary segregation from a range of 7 to 60 days to a range of 3 
to 12 months, depending on the seriousness of the prohibited act. This 
change allows us to more effectively discipline and more accurately 
reflects the serious nature of all of the prohibited acts. There are 
several reasons that this time frame was chosen for the maximum amount 
of disciplinary segregation:
    Current DS sanctions have been in place since January 5, 1988. In 
the past 16 years, the inmate population has increased dramatically, 
most recently to include D.C. Code felony offenders. Likewise, because 
the population has also changed dramatically, the nature and severity 
of prohibited acts committed has intensified. Specifically, the Bureau 
has seen an increase in offenses related to gang-related activity, 
firearms, and drugs. Also, federal offenses have expanded to include 
use of firearms, new drug-related offenses, conspiracies, and higher 
penalties for homicides. In addition, because sentence length has 
generally increased, the current sanctions of 60-90 days of 
disciplinary segregation accounts for a much smaller percentage of the 
typical sentence. Therefore, current DS sanctions no longer effectively 
function as a deterrent. We increase this sanction to reflect the needs 
and the nature of the changing and expanding inmate population.
    Under the current disciplinary rules, approximately 16% of inmates 
committing prohibited acts were repeat offenders who were sanctioned to 
the maximum amount of disciplinary segregation sanction multiple times, 
resulting in 12 months or more of total disciplinary segregation time. 
Again, the current maximum DS sanction is not functioning as an 
effective deterrent.
    Finally, it is important to note that this rule increases the 
maximum amount of the disciplinary segregation sanction available to 
DHOs. DHOs will not in fact impose the maximum amount of disciplinary 
segregation in every case; only in the most egregious circumstances for 
the most serious offenses.
    We also remove the sanction of disciplinary transfer, which was 
listed as a recommended sanction. Instead, transfer decisions will be 
based on administrative issues, such as population management. Bureau 
administrators must use transfers as a tool for careful management of 
inmate population interests. Transfers are not an appropriate 
disciplinary sanction.
    We retain former Table 5, Sanctions for Repetition of Prohibited 
Acts Within Same Category, as new Table 2, revised slightly for 
clarity, because this table further details available increased 
sanctions for repeated offenses in each of the four severity 
categories. Also in this table, we increase the maximum amount of time 
an inmate can be sanctioned to disciplinary segregation from a range of 
7 to 60 days to a range of 1 to 18 months, depending on the seriousness 
or frequency of commission of the prohibited act. This change

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allows us to more effectively discipline and more accurately reflects 
the serious nature of all of the prohibited acts.
    We revise former Table 6, Sanctions by Severity of Prohibited Act, 
With Eligibility for Restoration of Forfeited and Withheld Statutory 
Good Time, as new Sec.  541.04, which details when an inmate must lose 
good time credit for committing a prohibited act. In the new rule, we 
simplify the table and explain the circumstances under which loss of 
good time credits is mandatory.
    Section 541.14 Incident report and investigation. We consolidate 
this section into new Sec.  541.05. In doing so, we retain the 
substance of the regulation, merely simplifying and clarifying language 
where possible. We also remove provisions relating solely to internal 
agency management, practice and procedure.
    Section 541.15 Initial hearing. This section becomes new Sec.  
541.07. As with the previous section, we simplified the language and 
removed provisions relating to internal agency practice and procedures. 
In this section, we detail the UDC process as the first disciplinary 
review. We also change the number of days from three work days to five 
work days that the unit discipline committee (UDC) will ordinarily 
conduct a review after an incident report is issued. This change is 
necessary because of the large increase of inmates and consequential 
increase in disciplinary actions since the drafting of the current 
rule.
    Section 541.16 Establishment and functioning of the Disciplinary 
Hearing Officer. We delete this section because it relates to internal 
agency practice in describing the process through which a DHO is 
established. We retain this guidance to staff and Wardens in Bureau 
policy.
    Section 541.17 Procedures before the Discipline Hearing Officer and 
541.18 Dispositions of the Discipline Hearing Officer. These sections 
are consolidated into new Sec.  541.08. As with other disciplinary 
regulations, we simplify the language while retaining the substance of 
the regulations, but remove provisions relating solely to internal 
agency practice.
    We also change the rule to allow DHOs to impose sanctions that are 
also available at the UDC level, since such apparently lesser sanctions 
may likewise be useful in changing inmate behavior at the DHO level.
    Section 541.19 Appeals from Unit Discipline Committee or Discipline 
Hearing Officer. In our new regulations on UDC and DHO process (new 
Sec. Sec.  541.05-541.08), we state that inmates may appeal UDC and DHO 
decisions through the Administrative Remedy Program (28 CFR Sec. Sec.  
542.10-542.19). The remainder of former Sec.  541.19 describes 
procedures the reviewing authority will follow in reviewing UDC and DHO 
decisions. This is guidance to the Administrative Remedy Program staff 
and, as internal agency procedures, does not need to be rules text. We 
will retain this guidance to staff in Bureau Administrative Remedy 
policy.
    Section 541.20 Justification for placement in disciplinary 
segregation and review of inmates in disciplinary segregation.
    We retain subsection (a) of this regulation as new Sec.  541.24, 
which explains that an inmate may be placed in disciplinary segregation 
by the DHO as a sanction for committing a prohibited act in the 
Greatest, High, or Moderate severity categories, or a repeated offense 
in the Low severity category.
    We delete subsection (b) of this rule because it is guidance to the 
warden. As internal agency procedural guidance, it does not need to be 
in rules text.
    Subsections (c) and (d) of this rule describe SRO hearing 
procedures. We streamline and clarify this language and retain the 
substance of this provision in new Sec. Sec.  541.22-541.26.
    Section 541.21 Conditions of disciplinary segregation. We 
streamline, clarify, and retain the substance of this regulation in new 
Sec.  541.31.
    Section 541.22 Administrative detention. As with the above 
regulation, we streamline, clarify, and retain the substance of this 
regulation in new Sec. Sec.  541.27-541.28.
    Section 541.23 Protection cases. We consolidate and streamline this 
regulation in new Sec. Sec.  541.28-541.30.

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 a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), and accordingly this rule has been 
reviewed by the Office of Management and Budget.

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

List of Subjects in 28 CFR Part 541

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.
    Under the rulemaking authority vested in the Attorney General in 5

[[Page 43098]]

U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
propose to amend 28 CFR part 541 as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

    1. Revise the authority citation for part 541 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--General

    2. Revise Subpart A to read as follows:
Subpart A--Inmate Discipline Program
Sec.
541.01 What is the purpose of this subpart?
541.02 Who is subject to the inmate discipline program?
541.03 What are the prohibited acts and available sanctions?
541.04 When will I lose good conduct sentence credit as a mandatory 
sanction?
541.05 How does the discipline process start?
541.06 What happens if I am mentally ill?
541.07 What happens at a Unit Discipline Committee's (UDC) review of 
the incident report?
541.08 What happens at a Discipline Hearing Officer's (DHO) hearing?

Subpart A--Inmate Discipline Program


Sec.  541.01  What is the purpose of this subpart?

    This subpart describes the Federal Bureau of Prisons' (Bureau) 
inmate discipline program. This program helps ensure the safety, 
security, and orderly operation of correctional facilities, and protect 
the public, by allowing Bureau staff to impose sanctions on inmates who 
commit prohibited acts. Sanctions will not be imposed in a capricious 
or retaliatory manner. The Bureau's inmate discipline program is 
authorized by 18 U.S.C. 4042(a)(3).


Sec.  541.02  Who is subject to the inmate discipline program?

    This program applies to sentenced and unsentenced inmates in Bureau 
custody. It also applies to sentenced and unsentenced inmates 
designated to non-Bureau facilities, for example, contract facilities, 
and for whom the Bureau is responsible.


Sec.  541.03  What are the prohibited acts and available sanctions?

    (a) Prohibited acts. The list of prohibited acts are divided into 
four separate categories based on severity: Greatest; High; Moderate; 
and Low. We describe the prohibited acts in Table 1--Prohibited Acts 
and Available Sanctions. Aiding, abetting, or making plans to commit 
any of the prohibited acts is treated the same as committing the act 
itself.
    (b) Available sanctions. The list of available sanctions for 
committing prohibited acts is listed in Table 1--Prohibited Acts and 
Available Sanctions. If you commit repetitive prohibited acts, we can 
impose increased sanctions, as listed in Table 2--Additional Available 
Sanctions for Repeated Prohibited Acts Within the Same Severity Level.

   Table 1.--Prohibited Acts and Available Sanctions Greatest Severity
                          Level Prohibited Acts
------------------------------------------------------------------------
 
------------------------------------------------------------------------
100                 Killing.
101                 Assaulting any person, or an armed assault on the
                     institution's secure perimeter (a charge for
                     assaulting any person at this level is to be used
                     only when serious physical injury has been
                     attempted or accomplished by an inmate).
102                 Escape from escort; escape from any secure or non-
                     secure institution, including a community facility;
                     escape from unescorted community program or
                     activity; escape from outside a secure institution.
103                 Setting a fire (charged with this act in this
                     category only when found to pose a threat to life
                     or a threat of serious bodily harm or in
                     furtherance of a prohibited act of Greatest
                     Severity, e.g. in furtherance of a riot or escape;
                     otherwise the charge is properly classified Code
                     218, or 329).
104                 Possession, manufacture, or introduction of a gun,
                     firearm, weapon, sharpened instrument, knife,
                     dangerous chemical, explosive, ammunition, or any
                     instrument used as a weapon.
105                 Rioting.
106                 Encouraging others to riot.
107                 Taking hostage(s).
108                 Possession, manufacture, introduction, or loss of a
                     hazardous tool (tools most likely to be used in an
                     escape or escape attempt or to serve as weapons
                     capable of doing serious bodily harm to others; or
                     those hazardous to institutional security or
                     personal safety; e.g., hack-saw blade, portable
                     telephone, pager, or other electronic communication
                     device).
109                 (Not to be used).
110                 Refusing to provide a urine sample; refusing to
                     breathe into a Breathalyzer; refusing to take part
                     in other drug-abuse testing.
111                 Introduction or making of any narcotics, marijuana,
                     drugs, alcohol, intoxicants, or related
                     paraphernalia, not prescribed for the individual by
                     the medical staff.
112                 Use of any narcotics, marijuana, drugs, alcohol,
                     intoxicants, or related paraphernalia, not
                     prescribed for the individual by the medical staff.
113                 Possession of any narcotics, marijuana, drugs,
                     alcohol, intoxicants, or related paraphernalia, not
                     prescribed for the individual by the medical staff.
114                 Sexual assault of any person, involving non-
                     consensual touching by force or threat of force.
115                 Destroying and/or disposing of any item during a
                     search or attempt to search.
196                 Use of the mail to further criminal activity.
197                 Use of the telephone to further criminal activity.
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 ``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 ``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).

[[Page 43099]]

 
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).
C.                  Disciplinary segregation (up to 12 months).
D.                  Make monetary restitution.
E.                  Monetary fine.
F.                  Loss of privileges (e.g., visiting, telephone,
                     commissary, movies, recreation).
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                Escape from a work detail, non-secure institution,
                     or other non-secure custody, including a community
                     facility, with subsequent voluntary return to
                     Bureau of Prisons custody within four hours.
201                 Fighting with another person.
202                 (Not to be used).
203                 Threatening another with bodily harm or any other
                     offense.
204                 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.
205                 Engaging in sexual acts.
206                 Making sexual proposals or threats to another.
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                 (Not to be used).
211                 Possessing any officer's or staff clothing.
212                 Engaging in or encouraging a group demonstration.
213                 Encouraging others to refuse to work, or to
                     participate in a work stoppage.
214                 (Not to be used).
215                 (Not to be used).
216                 Giving or offering an official or staff member a
                     bribe, or anything of value.
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 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.
219                 Stealing; theft (including data obtained through the
                     unauthorized use of a communications device, or
                     through unauthorized access to disks, tapes, or
                     computer printouts or other automated equipment on
                     which 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 and conducted by staff).
221                 Being in an unauthorized area with a person of the
                     opposite sex without staff permission.
222                 (Not to be used).
223                 (Not to be used).
224                 Assaulting any person (a charge at this level is
                     used when less serious physical injury or contact
                     has been attempted or accomplished by an inmate).
225                 Stalking another person, as evidenced by a pattern
                     of contacting the person with an intent to harass,
                     alarm, or annoy, after having been 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                 Tattooing or self-mutilation.
229                 Sexual assault of any person, involving non-
                     consensual touching without force or threat of
                     force.
296                 Use of the mail for abuses other than criminal
                     activity, and which circumvent mail monitoring
                     procedures (e.g., 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).
297                 Use of the telephone for abuses other than criminal
                     activity, and which circumvent telephone monitoring
                     procedures (e.g., possession and/or use of another
                     inmate's PIN number; third-party calling; third-
                     party billing; using credit card numbers to place
                     telephone calls; conference calling; talking in
                     code; three-way calls; allowing another inmate to
                     use your PIN number; placing another inmate's
                     telephone number on your approved telephone list).
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 ``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 ``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).

[[Page 43100]]

 
C.                  Disciplinary segregation (up to 6 months).
D.                  Make monetary restitution.
E.                  Monetary fine.
F.                  Loss of privileges (e.g., visiting, telephone,
                     commissary, movies, recreation).
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                 Indecent Exposure.
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 assignment.
311                 Failing to perform work as instructed by the
                     supervisor.
312                 Insolence towards a staff member.
313                 Lying or providing a false statement to a staff
                     member.
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.
317                 Failure to follow safety or sanitation regulations
                     (including safety regulations, chemical
                     instructions, tools, MSDS sheets, OSHA standards).
318                 Using any equipment or machinery which is not
                     specifically authorized.
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.
325                 Preparing or conducting a gambling pool.
326                 Possession of gambling paraphernalia.
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, 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).
332                 Smoking where prohibited.
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.
335                 Communicating gang affiliation; participating in
                     gang related activities; possession of
                     paraphernalia indicating gang affiliation.
336                 Circulating a petition.
396                 Use of the mail for abuses other than criminal
                     activity which do not circumvent mail monitoring
                     procedures.
397                 Use of the telephone for abuses other than criminal
                     activity which do not circumvent telephone
                     monitoring procedures (e.g., inmate calls a number
                     on an approved list and other individuals pick-up
                     extension lines and talk simultaneously; inmate
                     uses the telephone during assigned work period;
                     inmate provides false information to place an
                     unauthorized individual on an approved telephone
                     list).
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 ``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 ``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).

[[Page 43101]]

 
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).
C.                  Disciplinary segregation (up to 3 months).
D.                  Make monetary restitution.
E.                  Monetary fine.
F.                  Loss of privileges (e.g., visiting, telephone,
                     commissary, movies, recreation).
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
 
 400                (Not to be used).
401                 (Not to be used).
402                 Malingering, feigning illness.
403                 (Not to be used).
404                 Using abusive or obscene language.
405                 (Not to be used).
406                 (Not to be used).
407                 Conduct with a visitor in violation of Bureau
                     regulations.
408                 (Not to be used).
409                 Unauthorized physical contact (e.g., kissing,
                     embracing).
498                 Interfering with a staff member in the performance
                     of duties most like another Low severity prohibited
                     act. This charge is to be used only when another
                     charge of Low severity is not accurate. The
                     offending conduct must be ``most like'' one of the
                     listed Low severity prohibited acts.
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. This charge is to be used
                     only when another charge of Low severity is not
                     accurate. The offending conduct must be ``most
                     like'' one of the listed Low severity prohibited
                     acts.
 
        Available Sanctions for Low Severity Level Prohibited Acts
 
 B.1                Disallow ordinarily up to 12.5% (1-7 days) of good
                     conduct time credit available for year (to be used
                     only where inmate found to have committed a second
                     violation of the same prohibited act within 6
                     months); Disallow ordinarily up to 25% (1-14 days)
                     of good conduct time credit available for year (to
                     be used only where inmate found to have committed a
                     third violation of the same prohibited act within 6
                     months) (a good conduct time sanction may not be
                     suspended).
D.                  Make monetary restitution.
E.                  Monetary fine.
F.                  Loss of privileges (e.g., visiting, telephone,
                     commissary, movies, recreation).
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.
------------------------------------------------------------------------


      Table 2.--Additional Available Sanctions for Repeated Prohibited Acts Within the Same Severity Level
----------------------------------------------------------------------------------------------------------------
                                 Time period for
 Prohibited act severity level    prior offense       Frequency of          Additional available sanctions
                                   (same code)      repeated offense
----------------------------------------------------------------------------------------------------------------
Low Severity (400 level)......  6 months.........  2nd offense......  1. Disciplinary segregation (up to 1
                                                                       month).
                                                                      2. Forfeit earned SGT or non-vested GCT up
                                                                       to 10% or up to 15 days, whichever is
                                                                       less, and/or terminate or disallow extra
                                                                       good time (EGT) (an EGT sanction may not
                                                                       be suspended).
                                                   3rd or more        Any available Moderate severity level
                                                    offense.           sanction (300 series).
Moderate Severity (300 level).  12 months........  2nd offense......  1. Disciplinary segregation (up to 6
                                                                       months).
                                                                      2. Forfeit earned SGT or non-vested GCT up
                                                                       to 37\1/2\% or up to 45 days, whichever
                                                                       is less, and/or terminate or disallow EGT
                                                                       (an EGT sanction may not be suspended).
                                                   3rd or more        Any available High severity level sanction
                                                    offense.           (200 series).
High Severity (200 level).....  18 months........  2nd offense......  1. Disciplinary segregation (up to 12
                                                                       months).
                                                                      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).

[[Page 43102]]

 
Greatest Severity (100 level).  24 months........  2nd or more        Disciplinary Segregation (up to 18
                                                    offense.           months).
----------------------------------------------------------------------------------------------------------------

Sec.  541.04  When will I lose good conduct sentence credit as a 
mandatory sanction?

    (a) You will lose good conduct sentence credit as a mandatory 
disciplinary sanction if you are in one of the following two groups:
    (1) VCCLEA-violent inmates. The date of your U.S. Code offense was 
on or after September 13, 1994, but before April 26, 1996, and you 
committed a ``crime of violence'' as defined by the Violent Crime 
Control and Law Enforcement Act of 1994 (VCCLEA); or
    (2) PLRA inmates. The date of your U.S. Code offense was on or 
after April 26, 1996, and, therefore, under the Prison Litigation 
Reform Act (PLRA), or the date of your District of Columbia (DC) Code 
offense was on or after August 5, 2000.
    (b) If you are an inmate in one of the above groups and commit a 
prohibited act, you will lose good conduct sentence credit as a 
mandatory disciplinary sanction. The amount of good conduct sentence 
credit you will lose depends on the severity level of the prohibited 
act(s) committed, as follows:
    (1) Greatest Severity Level Offenses. You will lose at least 41 
days, or 75% of available credit if less than 54 days are available for 
the prorated period, for each act committed.
    (2) High Severity Level Offenses. You will lose at least 27 days, 
or 50% of available credit if less than 54 days are available for the 
prorated period, for each act committed.
    (3) Moderate Severity Level Offenses. You will lose at least 14 
days, or 25% of available credit if less than 54 days are available for 
the prorated period, after committing two or more Moderate severity 
acts during the current year of your good conduct sentence credit 
availability.
    (4) Low Severity Level Offenses. You will lose at least 7 days, or 
12.5% of available credit if less than 54 days are available for the 
prorated period, after committing three or more Low severity acts 
during the current year of your good conduct sentence credit 
availability.


Sec.  541.05  How does the discipline process start?

    (a) Incident report. The discipline process starts when a staff 
witness reasonably believes that you committed a prohibited act. A 
staff member will issue you an incident report describing the incident 
and the prohibited act(s) you are charged with committing. You will 
ordinarily receive the incident report within 24 hours of staff 
becoming aware of your involvement in the incident.
    (b) Investigation. After you receive an incident report, a Bureau 
staff member will investigate it.
    (1) Information: The investigator will specifically inform you:
    (A) Of the charge(s) against you; and
    (B) That you may remain silent at all stages of the discipline 
process, but that your silence may be used to draw an adverse inference 
against you at any stage of the process. Your silence alone, however, 
cannot be the basis for finding you committed the prohibited act(s).
    (2) Statement: When the investigator asks 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 staff 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, 
except for prohibited acts in the Greatest and High severity levels, or 
as otherwise required by law or these rules. If the incident report is 
informally resolved, it will be removed from your records.


Sec.  541.06  What happens if I am mentally ill?

    If it appears you are mentally ill at any stage of the discipline 
process, you will be examined by mental health staff.
    (a) Competency to Participate in Disciplinary Proceedings. If 
evidence indicates that you cannot understand the nature of the 
disciplinary proceedings, or cannot help in your own defense, 
disciplinary proceedings may be postponed until you are competent to 
participate. The UDC or DHO will make this decision based on evidence, 
including evidence presented by mental health staff.
    (b) Responsibility for Conduct. You will not be disciplined for 
conduct committed when, as the result of a severe mental disease or 
defect, you were unable to appreciate the nature and quality, or 
wrongfulness of the act. The UDC or DHO will make this decision based 
on evidence, including evidence presented by mental health staff.


Sec.  541.07  What happens at a Unit Discipline Committee's (UDC) 
review of the incident report?

    A Unit Discipline Committee (UDC) will review the incident report 
once the staff investigation is complete. The UDC's review involves the 
following:
    (a) Available dispositions. The UDC will make one of the following 
decisions after reviewing the incident report:
    (1) You committed the prohibited act(s) charged, and/or a similar 
prohibited act(s) as described in the incident report;
    (2) You did not commit the prohibited act(s) charged; or
    (3) The incident report will be referred to the Discipline Hearing 
Officer (DHO) for further review, based on the seriousness of the 
prohibited act(s) charged.
    (4) If you are charged with a Greatest or High severity prohibited 
act, or are an inmate covered by Sec.  541.04, the UDC will 
automatically refer the incident report to the DHO for further review.
    (b) UDC members. The UDC ordinarily consists of two or more staff. 
UDC members will not be victims, witnesses, investigators, or otherwise 
significantly involved in the incident.
    (c) Timing. The UDC will ordinarily review the incident report 
within five work days after it is issued, not counting the day it was 
issued, weekends, and holidays. UDC review of the incident report may 
also be suspended if it is being investigated for possible criminal 
prosecution.
    (d) Inmate appearance. You are permitted to appear before the UDC 
during its review of the incident report, except during UDC 
deliberations or when your presence would jeopardize institution 
security, at the UDC's discretion. Also:
    (1) You may appear either in person or electronically (for example, 
by video

[[Page 43103]]

or telephone conferencing) at the UDC's discretion.
    (2) You may waive your appearance before the UDC. If you waive your 
appearance, the UDC will review the incident report in your absence.
    (3) If you escape or are otherwise absent from custody, the UDC 
will conduct a review in your absence at the institution where you were 
last confined.
    (e) Evidence. You are entitled to make a statement and present 
documentary evidence to the UDC on your own behalf. The UDC will 
consider all evidence presented during its review. The UDC's decision 
will be based on at least some facts and, if there is conflicting 
evidence, on the greater weight of the evidence.
    (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, disciplinary segregation, or 
monetary fines.
    (g) Referral to the DHO. If the UDC refers the incident report to 
the DHO for further review, the UDC will advise you of your rights at 
the upcoming DHO hearing, as detailed in Sec.  541.08.
    (h) Written report. You will receive a written copy of the UDC's 
decision following its review of the incident report.
    (i) Appeals. You may appeal the UDC's action(s) through the 
Administrative Remedy Program, 28 CFR Part 542, Subpart B.


Sec.  541.08  What happens at a Discipline Hearing Officer's (DHO) 
hearing?

    The Discipline Hearing Officer (DHO) will only conduct a hearing on 
the incident report if referred by the UDC. The DHO's hearing involves 
the following:
    (a) Available dispositions. The DHO will make one of the following 
decisions after a hearing on the incident report:
    (1) You committed the prohibited act(s) charged, and/or a similar 
prohibited act(s) as described in the incident report;
    (2) You did not commit the prohibited act(s) charged; or
    (3) The incident report will be referred back for further 
investigation, review, and disposition.
    (b) Discipline Hearing Officer. The DHO will be an impartial 
decision maker who was not a victim, witness, investigator, or 
otherwise significantly involved in the incident.
    (c) Timing. You will receive written notice of the charge(s) 
against you at least 24 hours before the DHO's hearing. You may waive 
this requirement, in which case the DHO's hearing can be conducted 
sooner.
    (d) Staff Representative. You are entitled to have a staff 
representative during the DHO hearing process as follows:
    (1) How to get a staff representative. You may request the staff 
representative of your choice, so long as that person was not a victim, 
witness, investigator, or otherwise significantly involved in the 
incident. If your request(s) cannot be fulfilled, and you still want a 
staff representative, the Warden will appoint one. The Warden will also 
appoint a staff representative if it appears you are unable to 
adequately represent yourself before the DHO, for example, if you are 
illiterate or have difficulty understanding the charges against you.
    (2) How the staff representative will help you. Prior to the DHO's 
hearing, the staff representative will be available to help you 
understand the incident report charges and potential consequences. The 
staff representative may also assist you by speaking with and 
scheduling witnesses, obtaining written statements, and otherwise 
helping you prepare evidence for presentation at the DHO's hearing. 
During the DHO's hearing, you are entitled to have the staff 
representative appear and assist you in understanding the proceedings. 
The staff representative can also assist you in presenting evidence 
during the DHO's hearing.
    (3) How the staff representative may appear. Your staff 
representative may appear either in person or electronically (for 
example, by video or telephone conferencing) at the DHO's discretion. 
If your staff representative is not available for the scheduled 
hearing, you may either select another staff representative, request 
the hearing be postponed for a reasonable amount of time until your 
staff representative can appear, or proceed without a staff 
representative.
    (e) Inmate appearance. You are permitted to appear before the DHO 
during the hearing on the incident report as follows:
    (1) You may appear either in person or electronically (for example, 
by video or telephone conferencing), at the DHO's discretion.
    (2) Your appearance may be prohibited during DHO deliberations or 
when your presence would jeopardize institution security, at the DHO's 
discretion.
    (3) You may waive your appearance before the DHO. If you waive your 
appearance, the DHO hearing will be conducted in your absence.
    (4) If you escape or are otherwise absent from custody, the DHO 
will conduct a hearing in your absence at the institution where you 
were last confined.
    (f) Evidence and witnesses. You are entitled to make a statement 
and present documentary evidence to the DHO on your own behalf. The DHO 
will consider all evidence presented during the hearing. The DHO's 
decision will be based on at least some facts and, if there is 
conflicting evidence, on the greater weight of the evidence. Witnesses 
may appear at the DHO's hearing as follows:
    (1) Witnesses may appear before the DHO either in person or 
electronically (for example, by video or telephone conferencing) at the 
DHO's discretion.
    (2) The DHO will call witnesses who have information directly 
relevant to the charge(s) and who are reasonably available. However, 
the DHO need not call witnesses adverse to you if their testimony is 
adequately summarized in the incident report or other investigation 
materials.
    (3) You or your staff representative may request witnesses appear 
at the hearing to testify on your behalf. Your requested witnesses may 
not appear if, in the DHO's discretion, they are not reasonably 
available, their presence at the hearing would jeopardize institution 
security, or they would present repetitive evidence.
    (4) If your requested witnesses are unavailable to appear, written 
statements can be requested by either the DHO or staff representative. 
The written statements can then be considered during the DHO's hearing.
    (5) Only the DHO may directly question witnesses at the DHO's 
hearing. Any questions by you or your staff representative must be 
submitted to the DHO, who will present the question to the witness in 
his/her discretion.
    (6) The DHO may consider evidence provided by a confidential 
informant (CI) that the DHO finds reliable. You will not be informed of 
the CI's identity. You will be informed of the CI's testimony to the 
extent it will not jeopardize institution security, at the DHO's 
discretion.
    (g) Sanctions. If you committed a prohibited act(s), the DHO can 
impose any of the available sanctions listed in Tables 1 and 2.
    (h) Written Report. You will receive a written copy of the DHO's 
decision following the hearing. The DHO is not required to prepare a 
verbatim record of the hearing. The DHO's written report will document 
the following:
    (1) Whether you were advised of your rights during the DHO process;
    (2) The evidence relied on by the DHO;
    (3) The DHO's decision;
    (4) The sanction imposed by the DHO; and

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    (5) The reason(s) for the sanction(s) imposed.
    (i) Appeals. You may appeal the DHO's action(s) through the 
Administrative Remedy Program, 28 CFR part 542, subpart B.

Subpart B--Inmate Discipline and Special Housing Units

    3. Revise Subpart B to read as follows:
Subpart B--Special Housing Units
Sec.
541.20 What is the purpose of this subpart?
541.21 What are SHUs?
541.22 What is my status when placed in the SHU?
541.23 When can I be placed in administrative detention status?
541.24 When can I be placed in disciplinary segregation status?
541.25 What notice will I receive when placed in the SHU?
541.26 How will my placement in the SHU be reviewed?
541.27 When can I be placed in administrative detention as a 
protection case?
541.28 How will my placement in the SHU as a protection case be 
reviewed?
541.29 What happens if staff verify my need for protection?
541.30 What happens if staff cannot verify my need for protection?
541.31 What are the conditions of confinement in the SHU?
541.32 What medical and mental health care will I receive in the 
SHU?
541.33 When will I be released from the SHU?

Subpart B--Special Housing Units


Sec.  541.20  What is the purpose of this subpart?

    This subpart describes the Federal Bureau of Prisons' (Bureau) 
operation of special housing units (SHU) at Bureau institutions. The 
Bureau's operation of SHUs is authorized by 18 U.S.C. 4042(a)(2) and 
(3).


Sec.  541.21  What are SHUs?

    SHUs are housing units in Bureau institutions where inmates are 
securely separated from the general inmate population, and may be 
housed either alone or with other inmates. Special housing units help 
ensure the safety, security, and orderly operation of correctional 
facilities, and protect the public, by providing alternative housing 
assignments for inmates removed from the general population.


Sec.  541.22  What is my status when placed in the SHU?

    When placed in the SHU, you are either in administrative detention 
status or disciplinary segregation status.
    (a) Administrative detention status. Administrative detention 
status is an administrative status which removes you from the general 
population when necessary to ensure the safety, security, and orderly 
operation of correctional facilities, or protect the public. 
Administrative detention status is non-punitive, and can occur for a 
variety of reasons.
    (b) Disciplinary segregation status. Disciplinary segregation 
status is a punitive status imposed only by a Disciplinary Hearing 
Officer (DHO) as a sanction for committing a prohibited act(s).


Sec.  541.23  When can I be placed in administrative detention status?

    You may be placed in administrative detention status for the 
following reasons:
    (a) Pending Classification. You are a new commitment pending 
classification.
    (b) Holdover Status. You are in holdover status during transfer to 
a designated institution or other destination.
    (c) Removal from general population. Your presence in the general 
population poses a threat to life, property, self, staff, other 
inmates, the public, or to the security or orderly running of the 
institution and:
    (1) Investigation. You are under investigation or awaiting a 
hearing for possibly violating a Bureau rule or criminal law;
    (2) Transfer. You are pending transfer to another institution or 
location;
    (3) Protection cases. You requested, or staff determined you need, 
administrative detention status for your own protection.
    (4) Post-disciplinary detention. You are ending confinement in 
disciplinary segregation status, and your return to the general 
population would threaten the safety, security, and orderly operation 
of a correctional facility, or public safety.


Sec.  541.24  When can I be placed in disciplinary segregation status?

    You may be placed in disciplinary segregation status only by the 
DHO as a sanction for committing a prohibited act(s) in the Greatest, 
High, or Moderate severity categories, or a repeated offense in the Low 
severity category.


Sec.  541.25  What notice will I receive when placed in the SHU?

    You will be notified of the reason(s) you are placed in the SHU as 
follows:
    (a) Administrative detention status. When placed in administrative 
detention status, you will receive a copy of the administrative 
detention order, ordinarily within 24 hours, detailing the reason(s) 
for your placement. However, when placed in administrative detention 
status pending classification or while in holdover status, you will not 
receive an administrative detention order.
    (b) Disciplinary segregation status. When you are to be placed in 
disciplinary segregation status as a sanction for violating Bureau 
rules, you will be informed by the DHO at the end of your discipline 
hearing.


Sec.  541.26  How will my placement in the SHU be reviewed?

    Your placement in the SHU will be reviewed by the Segregation 
Review Official (SRO) as follows:
    (a) Three day review. Within three work days of your placement in 
administrative detention status, not counting the day you were 
admitted, weekends, and holidays, the SRO will review the supporting 
records. If you are in disciplinary segregation status, this review 
will not occur.
    (b) Seven day reviews. Within seven continuous calendar days of 
your placement in either administrative detention or disciplinary 
segregation status, the SRO will formally review your status at a 
hearing you can attend. Subsequent reviews of your records will be 
performed in your absence by the SRO every seven continuous calendar 
days thereafter.
    (c) Thirty day reviews. After every 30 calendar days of continuous 
placement in either administrative detention or disciplinary 
segregation status, the SRO will formally review your status at a 
hearing you can attend.
    (d) Administrative remedy program. You can submit a formal 
grievance challenging your placement in the SHU through the 
Administrative Remedy Program, 28 CFR part 542, subpart B.


Sec.  541.27  When can I be placed in administrative detention as a 
protection case?

    You may be placed in administrative detention status as a 
protection case in the following circumstances.
    (a) Victim of inmate assault or threats. You were the victim of an 
inmate assault, or are being threatened by other inmates, including 
threats of harm if you do not act in a certain way, for example, 
threats of harm unless you engage in sexual activity.
    (b) Inmate informant. Your safety is threatened because you 
provided, or are perceived as having provided, information to staff or 
law enforcement authorities regarding other inmates or persons in the 
community.
    (c) Inmate refusal. You refuse to enter the general population 
because of alleged pressures or threats from

[[Page 43105]]

unidentified inmates, or for no expressed reason.
    (d) Staff concern. Based on evidence, staff believe your safety may 
be seriously jeopardized by placement in the general population.


Sec.  541.28  How will my placement in the SHU as a protection case be 
reviewed?

    (a) Staff investigation. Whenever you are placed in the SHU as a 
protection case, whether requested by you or staff, an investigation 
will occur to verify the reasons for your placement.
    (b) Inmate consents. If you consent to placement in the SHU as a 
protection case, you will be reviewed as an ordinary administrative 
detention case so long as reasons exist to support your placement, or 
while an investigation is pending to verify the reasons for your 
placement.
    (c) Inmate contests. If you contest your placement in the SHU as a 
protection case, you will receive a hearing according to the procedural 
requirements of Sec.  541.26(b) within seven calendar days of your 
placement. Additionally, if you feel at any time your placement in the 
SHU as a protection case is unnecessary, you may request a hearing 
under this section. If you remain in administrative detention status 
following such a hearing, you will be periodically reviewed as an 
ordinary administrative detention case under Sec.  541.26.


Sec.  541.29  What happens if staff verify my need for protection?

    If a staff investigation verifies your need for placement in the 
SHU as a protection case, you may remain in the SHU or be transferred 
to another institution where your status as a protection case may not 
be necessary, at the Warden's discretion.


Sec.  541.30  What happens if staff cannot verify my status as a 
protection case?

    If a staff investigation fails to verify your need for placement in 
the SHU as a protection case, you will be instructed to return to the 
general population. If you refuse to return to the general population 
under these circumstances, you may be subject to disciplinary action.


Sec.  541.31  What are the conditions of confinement in the SHU?

    Your living conditions in the SHU will meet or exceed standards for 
healthy and humane treatment, including, but not limited to, the 
following specific conditions:
    (a) Environment. Your living quarters will be well-ventilated, 
adequately lighted, appropriately heated, and maintained in a sanitary 
condition.
    (b) Cell Occupancy. Your living quarters will ordinarily house only 
the amount of occupants for which it is designed. The Warden, however, 
may authorize more occupants so long as adequate standards can be 
maintained.
    (c) Clothing. You will receive adequate institution clothing, 
including footwear, while housed in the SHU. You will be provided 
necessary opportunities to exchange clothing and/or have it washed.
    (d) Bedding. You will receive a mattress, blankets, a pillow, and 
linens for sleeping. You will receive necessary opportunities to 
exchange linens.
    (e) Food. You will receive nutritionally adequate meals.
    (f) Personal hygiene. You will have access to a wash basin and 
toilet. You will receive personal items necessary to maintain an 
acceptable level of personal hygiene, for example, toilet tissue, soap, 
toothbrush and cleanser, shaving utensils, etc. You will ordinarily 
have an opportunity to shower and shave at least three times per week. 
You will have access to hair care services as necessary.
    (g) Exercise. You will receive the opportunity to exercise outside 
your individual quarters at least five hours per week, ordinarily on 
different days in one-hour periods. You can be denied these exercise 
periods for a week at a time by order of the Warden if it is determined 
that your use of exercise privileges threatens safety, security, and 
orderly operation of a correctional facility, or public safety.
    (h) Personal property. In either status, your amount of personal 
property may be limited for reasons of fire safety or sanitation.
    (1) In administrative detention status you are ordinarily allowed a 
reasonable amount of personal property and access to the commissary.
    (2) In disciplinary segregation status your personal property will 
be impounded, with the exception of limited reading/writing materials, 
and religious articles. Also, your commissary privileges may be 
limited.
    (i) Correspondence. You will receive correspondence privileges 
according to Part 540, Subpart B.
    (j) Telephone. You will receive telephone privileges according to 
Part 540, Subpart I.
    (k) Visiting. You will receive visiting privileges according to 
Part 540, Subpart D.
    (l) Legal Activities. You will receive an opportunity to perform 
personal legal activities according to Part 543, Subpart B.
    (m) Staff monitoring. You will be monitored by staff assigned to 
the SHU, including program and unit team staff.
    (n) Programming Activities. In administrative detention status, you 
will have access to programming activities to the extent safety, 
security, orderly operation of a correctional facility, or public 
safety are not jeopardized. In disciplinary segregation status, your 
participation in programming activities, e.g., educational programs, 
may be suspended.
    (o) Administrative remedy program. You can submit a formal 
grievance challenging any aspect of your confinement in the SHU through 
the Administrative Remedy Program, 28 CFR part 542, subpart B.


Sec.  541.32  What medical and mental health care will I receive in the 
SHU?

    (a) Medical Care. A health services staff member will visit you 
daily to provide necessary medical care. Emergency medical care is 
always available.
    (b) Mental Health Care. After every 30 calendar days of continuous 
placement in either administrative detention or disciplinary 
segregation status, mental health staff will examine you, including a 
personal interview. Emergency mental health care is always available.


Sec.  541.33  When will I be released from the SHU?

    (a) Administrative detention status. You will be released from 
administrative detention status when the reasons for your placement no 
longer exist.
    (b) Disciplinary segregation status. You will be released from 
disciplinary segregation status after satisfying the sanction imposed 
by the DHO. The SRO may release you earlier if it is determined you no 
longer require disciplinary segregation status.

[FR Doc. 05-14637 Filed 7-25-05; 8:45 am]
BILLING CODE 4410-05-P