Inmate Discipline Program/Special Housing Units: Subpart Revision and Clarification, 76263-76274 [2010-30525]

Agencies

• Department of Justice
• Bureau of Prisons
• Prisons Bureau

[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76263-76274]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30525]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 541

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


Inmate Discipline Program/Special Housing Units: Subpart Revision 
and Clarification

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) amends its 
Inmate Discipline and Special Housing Unit (SHU) regulations. 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 regulations text. We also make 
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 Discipline Hearing Officers more 
flexibility in adapting the sanction to fit the seriousness of the 
violation.

DATES: This rule is effective on March 1, 2011.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534.

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

SUPPLEMENTARY INFORMATION: The Bureau amends 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 regulations text. The proposed 
regulation contained a detailed section-by-section analysis (published 
on July

[[Page 76264]]

26, 2005, at 70 FR 43093). This regulation finalizes the proposed 
regulation with only minor changes. We received only four comments 
containing several similar issues. We address the issues raised by the 
commenters below.
    Comment: It is unlawful to require DNA testing while in Bureau 
custody. One commenter, an inmate, stated that he has a Court order to 
submit to a non-invasive DNA test as directed by a probation officer 
upon release, and therefore believes it is unlawful to ``require'' him 
to submit to DNA testing while in the Bureau's custody under prohibited 
act code 227 (Refusing to participate in a required physical test or 
examination unrelated to testing for drug abuse).
    Bureau Response: The 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) is 
necessary to comply with Federal law. 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 qualifying Federal, 
military, or DC Code offenses. The FBI is required to analyze the 
samples and maintain the information in the Combined DNA Index System 
(CODIS). Although this commenter and other inmates may have court 
orders requiring such testing upon their release, these court orders 
are not inconsistent with the Bureau's authority to conduct testing 
during incarceration. Because we are required to do this by statute, we 
need to have the specific capability to discipline inmates who 
jeopardize the Bureau's compliance with the statute.
    Comment: Code 296 could result in lawsuits for infringement of the 
6th Amendment right of access to the courts. Another inmate complained 
that defective copying machines at her institution resulted in staff 
making copies of legal material for inmates on a staff copier only at 
times convenient for staff. The inmate then complained that she was 
therefore ``forced'' to send originals to a legal assistant to copy and 
file, violating code 296 (sending correspondence to an address with 
directions to have the correspondence sent to an unauthorized person). 
She concluded that code 296 should therefore exclude legal material.
    Bureau Response: We do not intend to impede inmates' Constitutional 
right to access courts. Code 296 is intended to sanction inmate 
behavior designed to circumvent inmate correspondence regulations and 
policy. It will be used to deter correspondence with unauthorized 
individuals and to prohibit illegal activity. 28 CFR 540.19(d) also 
allows for inmates to send ``legal correspondence'' to legal 
assistants. Inmates must clearly mark the envelope as ``legal mail.'' 
If inmates encounter a problem with sending legal mail to their 
attorneys, they should file an administrative remedy complaint 
according to procedures in 28 CFR part 542.
    Comment: Distinction should be drawn between violation of 334 
(Conducting a business) and management of pre-existing assets by a 
designated representative, which is allowed under the regulations. Some 
commenters were concerned that staff may not understand this 
distinction, and wanted more details about this code.
    Bureau response: In response to this commenter, we have amended 
this code to clarify that inmate activities related to conducting a 
business that are authorized by staff, such as those the commenter 
refers to, will not violate the prohibited act code. We revise this 
code to prohibit only ``Conducting a business; conducting or directing 
an investment transaction without staff authorization.''
    Also, in corresponding policy guidance to staff, the Bureau will 
ensure that staff are aware of the distinction between violation of 
this prohibited act code and management of pre-existing assets by a 
designated representative. Staff are currently aware that inmates are 
permitted limited opportunities to protect personal assets (see 28 CFR 
540.14(d)(4)) or engage in an approved special visit for the purpose of 
addressing a business matter (see 28 CFR 540.45(a)).
    Comment: Codes 199, 299, 399 and 499 (``Conduct most like'' codes) 
are too vague.
    Bureau response: The Bureau gives guidance to its Discipline 
Hearing Officers (DHOs) that they are to use this charge only when 
another charge of the same severity level is not applicable. These 
codes, along with codes 198, 298, 398 and 498 (Conduct which disrupts 
or interferes with the security or orderly running of the institution 
or the Bureau of Prisons most like another prohibited act in the same 
severity level) give the Bureau flexibility to address unique 
situations.
    Currently, the DHO or Unit Disciplinary Committee (UDC) must 
indicate in its findings a specific finding of the severity level of 
the conduct and a comparison to the offense in that severity level 
which the DHO/UDC finds is most comparable. Therefore, whenever these 
codes are used, reference will be made to another code which is most 
like the inmate's present problematic conduct, making the DHO/UDC 
finding as specific as possible.
    Also, courts have consistently upheld this type of prison 
regulation, particularly where the act committed is similar to a 
specifically defined prohibited act. See Landman v. Royster, 333 
F.Supp. 621, 655-56 (E.D.Va.1971) (For prisoners, ``the law requires 
less in the way of notice, and places a greater burden on the 
individual to make inquiry or ask permission before acting.''); Meyers 
v. Allderedge, 492 F.2d 296, 309 (3rd Cir. 1974) (``It is nearly 
impossible for prison authorities to anticipate, through a narrowly 
drawn regulation, every conceivable form of misconduct which threatens 
prison security.''); Schenck v. Edwards, 921 F. Supp 679 (E.D. Wash 
1996) (``One cannot realistically expect prison officials to make and 
be bound by an exclusive list of every item constituting contraband. 
Prison officials must have some flexibility to address situations as 
they arise.''). See also Coffman v. Trickey, 884 F.2d 1057 (8th Cir. 
1989), in which an inmate was charged with violating a prohibition on 
violating a published rule. The court found that because prison 
officials could not point to which rule the inmate actually violated, 
there was insufficient notice to the inmate of the prohibited act and 
therefore a violation of due process. As mentioned above, however, DHOs 
do not use prohibited act codes 199, 299, 399, or 499 without referring 
to another code which is most like the inmate's present problematic 
conduct.
    Comment: It is unfair to impose monetary fines. One commenter was 
concerned about what happens if a monetary fine is not paid. That 
commenter opined that monetary fines are discriminatory and arbitrary 
in that inmates don't have the ability to pay and those that do have an 
advantage.
    Bureau response: 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 after providing the 
inmate with due process procedures. DHOs will have the benefit of 
seeing the total circumstances and situation of the

[[Page 76265]]

inmate, and if, for example, the inmate is indigent, the DHO may choose 
instead to impose a different sanction. DHOs are trained to sanction 
effectively based on each inmate's circumstances and the punitive value 
of the sanction for that particular inmate.
    If a monetary fine imposed as a sanction by a DHO is not paid, the 
DHO will have the authority to order that the amount of the fine be 
``frozen'' in that inmate's deposit fund account so that the amount of 
the fine would not be available for spending by the inmate. Non-payment 
of a fine is not a prohibited act and will not be a factor for an 
inmate's placement or continuation in SHU.
    Comment: Forfeiture of good time is unfair. One commenter states 
that, before 1996, there was no forfeiture of good time, or good time 
could be recouped. The commenter wrote: ``Is it not discriminatory if 
those inmates who were sentenced before 1996 must now face additional 
punishments that were not part of the scheme when they were originally 
sentenced?''
    Bureau response: The sanction of forfeiture of good conduct time 
appeared in the previous regulations. We do not intend to alter its 
application through this rulemaking. Under previous regulations, which 
will be incorporated into the Bureau's Inmate Discipline policy, an 
inmate sentenced under the Sentencing Reform Act provisions of the 
Comprehensive Crime Control Act (committed his or her crime on or after 
November 1, 1987) may not receive statutory good time, but is eligible 
to receive 54 days good conduct time credit each year (18 U.S.C. 
3624(b)). Once awarded, the credit is vested, and may not be 
disallowed.
    However for crimes committed on or after September 13, 1994, and 
before April 26, 1996, credit toward an inmate's service of sentence 
will not vest unless the inmate has earned or is making satisfactory 
progress toward a high school diploma or an equivalent degree, or has 
been exempted from participation because of a learning disability or 
other status.
    In imposing this sanction, the DHO will consider the severity of 
the prohibited act and the suggested disallowance guidelines in making 
a determination to disallow good conduct time in a non-discriminatory 
fashion. Disallowance of good conduct time is not an ``additional 
punishment.''
    Comment: The increased disciplinary segregation sanction time is 
unfair. One commenter believed that increasing the amount of time an 
inmate can potentially be placed in disciplinary segregation status as 
a sanction has a ``deleterious effect on inmates and puts the inmate in 
jeopardy of permanent psychological damage.'' The commenter recommended 
that these increases be available only for ``new criminal behavior and 
not for incident reports that are minor in nature.''
    Bureau response: 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 disciplinary segregation (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 DC 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 regulations, 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 regulation increases the maximum amount of the disciplinary 
segregation sanction available to DHOs. DHOs will only impose the 
maximum amount of disciplinary segregation in the most egregious 
circumstances for the most serious offenses.
    Also, with regard to the commenter's concern about the 
psychological effects on inmates placed in SHU, we note that Sec.  
541.32 requires health services staff to visit inmates in SHU daily to 
provide necessary medical care. That regulation also indicates that, 
after every 30 calendar days of continuous placement in SHU, mental 
health staff will examine the inmate, including a personal interview. 
Emergency medical and mental health care is always available.
    Comment: Special Housing Unit (SHU) conditions are substandard. Two 
commenters complained about SHU conditions, and one opined that inmates 
in Administrative Detention (AD) status should have the same amenities 
as those in general population status. Specifically, the commenter 
believes that ``AD food should be the same as that provided in general 
population,'' ``AD inmates should be allowed the same amount of 
personal property as permitted for inmates in general population,'' and 
``AD inmates should not have telephone calls limited.''
    Bureau response: With regard to the commenters concerns about sub-
standard conditions in Special Housing Units (SHU) for inmates in 
Administrative Detention or Disciplinary Segregation status, the 
Bureau's policies for conditions in SHU continue to exist and are 
applicable nationwide to ensure uniformity.
    Also, Sec.  541.31 provides that conditions in SHU will ``meet or 
exceed standards for healthy and humane treatment,'' and subsection (d) 
provides that food will be nutritionally adequate. The staff-inmate 
ratio and other unique circumstances of each institution may render it 
impractical to have food provided to inmates in SHU be exactly the same 
as that provided in general population.
    With regard to personal property, subsection (h) provides that 
personal property may be limited for reasons of fire safety or 
sanitation, but that inmates in AD status will ordinarily be allowed a 
reasonable amount of personal property and access to the commissary. 
Inmates in DS status have been placed there as a disciplinary sanction, 
will have their personal property impounded, with the exception of 
limited reading/writing materials, and religious articles, and their 
commissary privileges may be limited. These provisions regarding 
personal property are not substantively different from the previous 
regulation or its application.
    Telephone calls will be allowed in accordance with 28 CFR part 540, 
subpart I. Inmates in AD status may have telephone calls limited by the 
staff-inmate ratio and unique circumstances of that institution. For 
example, staff may not be available at all times to provide an AD 
inmate with access to a telephone and may, therefore, have to schedule 
times to place calls. However, inmates in AD status will have telephone 
privileges consistent with the

[[Page 76266]]

available resources and security needs of the institution.
    Comment: Inmates should be allowed to attend the 3-day review of 
their placement in AD, and staff information relevant to the AD 
placement should be presented then.
    Bureau response: Section 541.26 states that a Segregation Review 
Officer (SRO) will review supporting records within three work days of 
an inmate's placement in administrative detention (AD) status. This is 
a paper-review by the SRO, not a hearing that can be attended by the 
inmate. The inmate has an opportunity to attend a formal review hearing 
both within seven days of placement in AD status and every thirty days 
thereafter.
    Comment: Table 4 (Sanctions) should not be eliminated because it 
provides directions for DHOs and without it, DHOs will not follow these 
processes.
    Bureau response: The table describing how DHOs are to impose 
sanctions will not be eliminated, but rather moved from Federal 
regulations language to Bureau policy implementing text. It will 
continue to exist as instruction to staff in the Bureau's Inmate 
Discipline policy. The Bureau's policies constitute mandatory staff 
procedures and guidance imposed by the Director. DHOs also receive 
extensive training and continual guidance regarding imposition of 
sanctions.
    Comment: Possession of cell phones should be under Code 297 instead 
of in the greatest severity category, unless the cell phone is used for 
criminal activity.
    Bureau response: The Bureau chooses to make possession of a 
cellular telephone or other electronic device a Greatest level 
prohibited act for the following reasons:
    Rapid technological advances have resulted in smaller cell phones 
which are easier to introduce into Bureau facilities. They may be 
purchased with very little accountability at a very low cost by those 
seeking to introduce them into Bureau facilities. Also, new wireless 
communications devices are being introduced to the market with 
increasing frequency, and are likewise small and easy to introduce. 
This is causing an increase in the number of electronic devices being 
introduced into Bureau facilities.
    When the Bureau first began investigating the potential problem in 
2003, we discovered that during that calendar year, institutions 
reported confiscating 270 cellular telephones from inmates. At least 
two inmates escaped from minimum security facilities while in 
possession of cellular telephones. We therefore increased the severity 
level for possession of a cellular telephone or other electronic device 
to reflect the potential seriousness of the conduct, which may result 
in aiding escape, continuing criminal activity, facilitating terrorism, 
and a host of other potential threats to the safety, security, and 
orderly operation of correctional facilities, and for the protection of 
the public.
    Other changes: The Bureau also makes the following minor changes to 
the prohibited act codes to amend the parenthetical lists of examples 
of contraband often found in inmates' possession:
    Code 331 prohibits possession, manufacture, introduction, or loss 
of a non-hazardous tool, equipment, supplies, or other non-hazardous 
contraband. Following this prohibited act code in the table in Sec.  
541.03, there is a parenthetical description listing examples of non-
hazardous contraband. We amend this list to include smoking apparatus 
and tobacco in any form where prohibited, and unauthorized nutritional/
dietary supplements.
    28 CFR 551.162(b)(2) indicates that Wardens may, with the Regional 
Director's concurrence, prohibit inmate smoking other than for 
authorized religious activities. We therefore make this conforming 
amendment to clarify that smoking apparatus and tobacco are non-
hazardous contraband and are prohibited in institutions where Wardens 
have prohibited inmate smoking.
    We also include unauthorized nutritional/dietary supplements in the 
list of examples of non-hazardous contraband for the following reasons: 
The Bureau has been finding inmates in possession of various types of 
herbal/dietary supplement items. However, these items do not fall under 
the same Food and Drug Administration (FDA) rules and regulations, 
including quality assurance measures, as medications. This has resulted 
in negative health outcomes for those taking such herbal/dietary 
supplements. These supplements have not passed through the same 
rigorous trials as FDA-approved medication in regards to safety, 
efficacy, adverse reactions, good manufacturing practices, etc.
    The FDA has made several announcements regarding the dangerous 
effects of dietary supplements. Some of these announcements, which can 
be found at https://www.fda.gov, include warnings against ``nicotene 
water,'' kava associated with severe liver injury, PC/SPES and SPES 
(which contain the harmful compounds warfarin and alprazolam), 
LipoKietix (which causes serious liver injuries), nettle (which has 
high lead content), and many others. For these reasons, the Bureau has 
determined that such items constitute non-hazardous contraband and are 
unauthorized for possession by inmates.
    Code 108 prohibits possession, manufacture, introduction, or loss 
of a hazardous tool, and also gives a parenthetical list of examples of 
hazardous tools. The list begins with a description of hazardous tools: 
``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.'' We 
amend this list to include body armor, maps, handmade rope, or other 
escape paraphernalia. This adds more specificity to this prohibited act 
code and serves to put inmates on greater notice of items considered 
hazardous.
    These are minor amendments to the parenthetical lists of examples 
of contraband often found in inmates' possession. The lists of examples 
are intended to be illustrative, not exhaustive.

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 regulation is a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), and accordingly this 
regulation 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 
regulation 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 regulation 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.

[[Page 76267]]

Unfunded Mandates Reform Act of 1995

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

List of Subjects in 28 CFR Part 541

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
Under rulemaking authority vested in the Attorney General in 5 U.S.C. 
301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons, we amend 28 CFR part 541 as follows.

Subchapter C--Institutional Management

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

0
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.


0
2. Revise Subpart A to Part 541 to read as follows:
Subpart A--Inmate Discipline Program
Sec.
541.1 Purpose.
541.2 Application.
541.3 Prohibited acts and available sanctions.
541.4 Loss of good conduct sentence credit as a mandatory sanction.
541.5 Discipline process.
541.6 Mentally ill inmates.
541.7 Unit Discipline Committee (UDC) review.
541.8 Discipline Hearing Officer (DHO) hearing.

Subpart A--Inmate Discipline Program


Sec.  541.1  Purpose.

    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 the 
protection of 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.  541.2  Application.

    This program applies to sentenced and unsentenced inmates in Bureau 
custody. It also applies to sentenced and unsentenced inmates 
designated to any prison, institution, or facility in which persons are 
held in custody by direction of, or under an agreement with, the Bureau 
of Prisons.


Sec.  541.3  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, attempting, 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).
102...................  Escape from escort; escape from any secure or
                         non-secure institution, including community
                         confinement; 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, body armor, maps, handmade rope, or
                         other escape paraphernalia, portable telephone,
                         pager, or other electronic 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 for an illegal purpose or to
                         commit or further a Greatest category
                         prohibited act.
197...................  Use of the telephone for an illegal purpose or
                         to commit or further a Greatest category
                         prohibited act.

[[Page 76268]]

 
198...................  Interfering with a staff member in the
                         performance of duties most like another
                         Greatest severity prohibited act. This charge
                         is to be used only when another charge of
                         Greatest severity is not accurate. The
                         offending conduct must be charged as ``most
                         like'' one of the listed Greatest severity
                         prohibited acts.
199...................  Conduct which disrupts or interferes with the
                         security or orderly running of the institution
                         or the Bureau of Prisons most like another
                         Greatest severity prohibited act. This charge
                         is to be used only when another charge of
                         Greatest severity is not accurate. The
                         offending conduct must be charged as ``most
                         like'' one of the listed Greatest severity
                         prohibited acts.
 
     Available Sanctions for Greatest Severity Level Prohibited Acts
 
A.....................  Recommend parole date rescission or retardation.
B.....................  Forfeit and/or withhold earned statutory good
                         time or non-vested good conduct time (up to
                         100%) and/or terminate or disallow extra good
                         time (an extra good time or good conduct time
                         sanction may not be suspended).
B.1...................  Disallow ordinarily between 50% and 75% (27-41
                         days) of good conduct time credit available for
                         year (a good conduct time sanction may not be
                         suspended).
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 confinement,
                         including community confinement, 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 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 through repeated
                         behavior which harasses, alarms, or annoys the
                         person, after having been previously warned to
                         stop such conduct.
226...................  Possession of stolen property.
227...................  Refusing to participate in a required physical
                         test or examination unrelated to testing for
                         drug abuse (e.g., DNA, HIV, tuberculosis).
228...................  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 which circumvent mail monitoring
                         procedures (e.g., use of the mail to commit or
                         further a High category prohibited act, special
                         mail abuse; writing letters in code; directing
                         others to send, sending, or receiving a letter
                         or mail through unauthorized means; sending
                         mail for other inmates without authorization;
                         sending correspondence to a specific address
                         with directions or intent to have the
                         correspondence sent to an unauthorized person;
                         and using a fictitious return address in an
                         attempt to send or receive unauthorized
                         correspondence).
297...................  Use of the telephone for abuses other than
                         illegal activity which circumvent the ability
                         of staff to monitor frequency of telephone use,
                         content of the call, or the number called; or
                         to commit or further a High category prohibited
                         act.
298...................  Interfering with a staff member in the
                         performance of duties most like another High
                         severity prohibited act. This charge is to be
                         used only when another charge of High severity
                         is not accurate. The offending conduct must be
                         charged as ``most like'' one of the listed High
                         severity prohibited acts.

[[Page 76269]]

 
299...................  Conduct which disrupts or interferes with the
                         security or orderly running of the institution
                         or the Bureau of Prisons most like another High
                         severity prohibited act. This charge is to be
                         used only when another charge of High severity
                         is not accurate. The offending conduct must be
                         charged as ``most like'' one of the listed High
                         severity prohibited acts.
 
       Available Sanctions for High Severity Level Prohibited Acts
 
A.....................  Recommend parole date rescission or retardation.
B.....................  Forfeit and/or withhold earned statutory good
                         time or non-vested good conduct time up to 50%
                         or up to 60 days, whichever is less, and/or
                         terminate or disallow extra good time (an extra
                         good time or good conduct time sanction may not
                         be suspended).
B.1...................  Disallow ordinarily between 25% and 50% (14-27
                         days) of good conduct time credit available for
                         year (a good conduct time sanction may not be
                         suspended).
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 program
                         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 without staff
                         authorization.
317...................  Failure to follow safety or sanitation
                         regulations (including safety regulations,
                         chemical instructions, tools, MSDS sheets, OSHA
                         standards).
318...................  Using any equipment or machinery without staff
                         authorization.
319...................  Using any equipment or machinery contrary to
                         instructions or posted safety standards.
320...................  Failing to stand count.
321...................  Interfering with the taking of count.
322...................  (Not to be used).
323...................  (Not to be used).
324...................  Gambling.
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, smoking apparatus and
                         tobacco in any form where prohibited, and
                         unauthorized nutritional/dietary supplements).
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 without staff
                         authorization.
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; or use of the mail to commit or
                         further a Moderate category prohibited act.
397...................  Use of the telephone for abuses other than
                         illegal activity which do not circumvent the
                         ability of staff to monitor frequency of
                         telephone use, content of the call, or the
                         number called; or to commit or further a
                         Moderate category prohibited act.

[[Page 76270]]

 
398...................  Interfering with a staff member in the
                         performance of duties most like another
                         Moderate severity prohibited act. This charge
                         is to be used only when another charge of
                         Moderate severity is not accurate. The
                         offending conduct must be charged as ``most
                         like'' one of the listed Moderate severity
                         prohibited acts.
399...................  Conduct which disrupts or interferes with the
                         security or orderly running of the institution
                         or the Bureau of Prisons most like another
                         Moderate severity prohibited act. This charge
                         is to be used only when another charge of
                         Moderate severity is not accurate. The
                         offending conduct must be charged as ``most
                         like'' one of the listed Moderate severity
                         prohibited acts.
 
     Available Sanctions for Moderate Severity Level Prohibited Acts
 
 A....................  Recommend parole date rescission or retardation.
B.....................  Forfeit and/or withhold earned statutory good
                         time or non-vested good conduct time up to 25%
                         or up to 30 days, whichever is less, and/or
                         terminate or disallow extra good time (an extra
                         good time or good conduct time sanction may not
                         be suspended).
B.1...................  Disallow ordinarily up to 25% (1-14 days) of
                         good conduct time credit available for year (a
                         good conduct time sanction may not be
                         suspended).
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
                         charged as ``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
                         charged as ``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 (same      Frequency of       Additional available sanctions
                                           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 offense  Any available Moderate severity
                                                                               level sanction (300 series).
Moderate Severity (300 level)....  12 months...........  2nd offense........  1. Disciplinary segregation (up to
                                                                               6 months).

[[Page 76271]]

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

Sec.  541.4  Loss of 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 and DC Code offenders. 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.  541.5  Discipline process.

    (a) Incident report. The discipline process starts when staff 
witness or reasonably believe 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 regulations. If the incident 
report is informally resolved, it will be removed from your records.


Sec.  541.6  Mentally ill inmates.

    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 Unit Disciplinary Committee or Discipline Hearing 
Officer 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.  541.7  Unit Discipline Committee (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:

[[Page 76272]]

    (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 th