Federal Register Vol No Wednesday December by liaoqinmei

VIEWS: 49 PAGES: 12

									                                                              Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations                                             76263

                                             whether fails charges paid with respect                     (b) Qualified business unit exception.               (f) Expiration date. This section
                                             to such a trading practice should be                     The source of income from a qualified                 expires on December 9, 2013.
                                             sourced under these regulations.                         fails charge shall be determined by
                                                                                                                                                            Steven T. Miller,
                                                                                                      reference to the residence of a qualified
                                             Effective/Applicability Date                                                                                   Deputy Commissioner for Services and
                                                                                                      business unit of a taxpayer if—
                                                                                                                                                            Enforcement.
                                                These regulations apply to qualified                     (1) The taxpayer’s residence,
                                             fails charges paid or accrued on or after                                                                        Approved: December 2, 2010.
                                                                                                      determined under section
                                             December 8, 2010.                                        988(a)(3)(B)(i), is the United States;                Michael Mundaca,
                                                                                                         (2) The qualified business unit’s                  Assistant Secretary of the Treasury.
                                             Special Analyses                                                                                               [FR Doc. 2010–30895 Filed 12–7–10; 8:45 am]
                                                                                                      residence, determined under section
                                               It has been determined that this                       988(a)(3)(B)(ii), is outside the United               BILLING CODE 4830–01–P
                                             Treasury decision is not a significant                   States;
                                             regulatory action as defined in                             (3) The qualified business unit is
                                             Executive Order 12866. Therefore, a                      engaged in the conduct of a trade or                  DEPARTMENT OF JUSTICE
                                             regulatory assessment is not required. It                business in the country where it is a
                                             has also been determined that section                    resident; and                                         Bureau of Prisons
                                             553(b) of the Administrative Procedure                      (4) The transaction to which the
                                             Act (5 U.S.C. chapter 5) does not apply                                                                        28 CFR Part 541
                                                                                                      qualified fails charge relates is
                                             to these regulations, and because these                  attributable to the qualified business                [Docket No. BOP–1118–F]
                                             regulations do not impose a collection                   unit. A transaction will be treated as
                                             of information on small entities, the                    attributable to a qualified business unit
                                                                                                                                                            RIN 1120–AB18
                                             provisions of the Regulatory Flexibility                 if it satisfies the principles of § 1.864–
                                             Act (5 U.S.C. chapter 6) do not apply.                                                                         Inmate Discipline Program/Special
                                                                                                      4(c)(5)(iii) (substituting ‘‘qualified                Housing Units: Subpart Revision and
                                             Pursuant to section 7805(f) of the                       business unit’’ for ‘‘U.S. office’’).
                                             Internal Revenue Code, these temporary                                                                         Clarification
                                                                                                         (c) Effectively connected income
                                             regulations will be submitted to the                                                                           AGENCY:    Bureau of Prisons, Justice.
                                                                                                      exception. Income from a qualified fails
                                             Chief Counsel for Advocacy of the Small
                                                                                                      charge that arises from a transaction that            ACTION:   Final rule.
                                             Business Administration for comment
                                                                                                      under the principles described in
                                             on its impact on small business.                                                                               SUMMARY:    In this document, the Bureau
                                                                                                      § 1.864–4(c) is effectively connected
                                             Drafting Information                                     with a United States trade or business                of Prisons (Bureau) amends its Inmate
                                                                                                      shall be sourced in the United States                 Discipline and Special Housing Unit
                                                The principal authors of these                                                                              (SHU) regulations. We intend this
                                             regulations are Sheila Ramaswamy and                     and the income from the qualified fails
                                                                                                      charge shall be treated as effectively                amendment to streamline and clarify
                                             Anthony J. Marra, Office of the                                                                                these regulations, eliminating
                                             Associate Chief Counsel (International).                 connected to the conduct of a United
                                                                                                      States trade or business to the same                  unnecessary text and obsolete language,
                                             However, other persons from the Office                                                                         and removing internal agency
                                             of Associate Chief Counsel                               extent as the transaction from which it
                                                                                                      arises.                                               procedures that need not be in
                                             (International) and the Treasury                                                                               regulations text. We also make
                                             Department have participated in their                       (d) Definitions.—(1) Qualified fails
                                                                                                      charge. For purposes of this section, a               substantive changes to our list of
                                             development.                                                                                                   prohibited acts for which disciplinary
                                                                                                      qualified fails charge is a payment that
                                             List of Subjects in 26 CFR Part 1                                                                              sanctions may be imposed, and alter the
                                                                                                         (i) Compensates a party to a
                                                                                                                                                            list of possible sanctions available to
                                               Income taxes, Reporting and                            transaction that provides for delivery of
                                                                                                                                                            allow Discipline Hearing Officers more
                                             recordkeeping requirements.                              a Treasury security in exchange for the
                                                                                                                                                            flexibility in adapting the sanction to fit
                                                                                                      payment of cash (delivery-versus-
                                             Adoption of Amendments to the                                                                                  the seriousness of the violation.
                                                                                                      payment settlement) for another party’s
                                             Regulations                                              failure to deliver the specified Treasury             DATES: This rule is effective on March 1,
                                                                                                      security on the settlement date specified             2011.
                                             ■Accordingly, 26 CFR part 1 is
                                                                                                      in the relevant agreement; and                        ADDRESSES: Rules Unit, Office of
                                             amended as follows:
                                                                                                         (ii) Is made pursuant to:                          General Counsel, Bureau of Prisons, 320
                                             PART 1—INCOME TAXES                                         (A) A trading practice or similar                  First Street, NW., Washington, DC
                                                                                                      guidance approved or adopted by either                20534.
                                             ■ Paragraph 1. The authority citation                    an agency of the United States                        FOR FURTHER INFORMATION CONTACT:
                                             for part 1 continues to read in part as                  government or the Treasury Market                     Sarah Qureshi, Office of General
                                             follows:                                                 Practices Group, or                                   Counsel, Bureau of Prisons, phone (202)
                                               Authority: 26 U.S.C. 863(a) and 7805                      (B) Any trading practice, program,                 307–2105.
                                             * * *                                                    policy or procedure approved by the                   SUPPLEMENTARY INFORMATION: The
                                             ■ Par. 2. Section 1.863–10T is added to                  Commissioner in guidance published in                 Bureau amends its inmate discipline
                                             read as follows:                                         the Internal Revenue Bulletin.                        and special housing unit (SHU)
                                                                                                         (2) Treasury security. For purposes of             regulations (28 CFR part 541, subpart A
                                             § 1.863–10T Source of income from a                      this section, a Treasury security is any              and subpart B) to streamline and clarify
                                             qualified fails charge (temporary).                      bill, note, or other evidence of                      these regulations, eliminating
jlentini on DSKJ8SOYB1PROD with RULES




                                                (a) In general. Unless paragraph (b) or               indebtedness issued by the United                     unnecessary text and obsolete language,
                                             (c) of this section applies, the source of               States Treasury Department.                           and removing internal agency
                                             income from a qualified fails charge                        (e) Effective/applicability date. This             procedures that need not be in
                                             shall be determined by reference to the                  section applies to qualified fails charges            regulations text. The proposed
                                             residence of the taxpayer as determined                  paid or accrued on or after December 8,               regulation contained a detailed section-
                                             under section 988(a)(3)(B)(i).                           2010.                                                 by-section analysis (published on July


                                        VerDate Mar<15>2010    17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00011   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                             76264            Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations

                                             26, 2005, at 70 FR 43093). This                          regulations and policy. It will be used               whenever these codes are used,
                                             regulation finalizes the proposed                        to deter correspondence with                          reference will be made to another code
                                             regulation with only minor changes. We                   unauthorized individuals and to                       which is most like the inmate’s present
                                             received only four comments containing                   prohibit illegal activity. 28 CFR                     problematic conduct, making the DHO/
                                             several similar issues. We address the                   540.19(d) also allows for inmates to                  UDC finding as specific as possible.
                                             issues raised by the commenters below.                   send ‘‘legal correspondence’’ to legal                   Also, courts have consistently upheld
                                                Comment: It is unlawful to require                    assistants. Inmates must clearly mark                 this type of prison regulation,
                                             DNA testing while in Bureau custody.                     the envelope as ‘‘legal mail.’’ If inmates            particularly where the act committed is
                                             One commenter, an inmate, stated that                    encounter a problem with sending legal                similar to a specifically defined
                                             he has a Court order to submit to a non-                 mail to their attorneys, they should file             prohibited act. See Landman v. Royster,
                                             invasive DNA test as directed by a                       an administrative remedy complaint                    333 F.Supp. 621, 655–56 (E.D.Va.1971)
                                             probation officer upon release, and                      according to procedures in 28 CFR part                (For prisoners, ‘‘the law requires less in
                                             therefore believes it is unlawful to                     542.                                                  the way of notice, and places a greater
                                             ‘‘require’’ him to submit to DNA testing                    Comment: Distinction should be                     burden on the individual to make
                                             while in the Bureau’s custody under                      drawn between violation of 334                        inquiry or ask permission before
                                             prohibited act code 227 (Refusing to                     (Conducting a business) and                           acting.’’); Meyers v. Allderedge, 492 F.2d
                                             participate in a required physical test or               management of pre-existing assets by a                296, 309 (3rd Cir. 1974) (‘‘It is nearly
                                             examination unrelated to testing for                     designated representative, which is                   impossible for prison authorities to
                                             drug abuse).                                             allowed under the regulations. Some                   anticipate, through a narrowly drawn
                                                Bureau Response: The high severity                    commenters were concerned that staff                  regulation, every conceivable form of
                                             level prohibited act code for refusing to                may not understand this distinction,                  misconduct which threatens prison
                                             participate in a required physical test or               and wanted more details about this                    security.’’); Schenck v. Edwards, 921 F.
                                             examination unrelated to testing for                     code.                                                 Supp 679 (E.D. Wash 1996) (‘‘One
                                             drug abuse (e.g., DNA, HIV,                                 Bureau response: In response to this               cannot realistically expect prison
                                             tuberculosis) is necessary to comply                     commenter, we have amended this code                  officials to make and be bound by an
                                             with Federal law. On December 19,                        to clarify that inmate activities related to          exclusive list of every item constituting
                                             2000, Congress enacted Public Law 106–                   conducting a business that are                        contraband. Prison officials must have
                                             546, commonly referred to as the DNA                     authorized by staff, such as those the                some flexibility to address situations as
                                             Analysis Backlog Elimination Act of                      commenter refers to, will not violate the             they arise.’’). See also Coffman v.
                                             2000 (Act). This Act requires the Bureau                 prohibited act code. We revise this code              Trickey, 884 F.2d 1057 (8th Cir. 1989),
                                             to collect DNA samples from                              to prohibit only ‘‘Conducting a business;             in which an inmate was charged with
                                             individuals convicted of qualifying                      conducting or directing an investment                 violating a prohibition on violating a
                                             Federal, military, or DC Code offenses.                  transaction without staff authorization.’’            published rule. The court found that
                                             The FBI is required to analyze the                          Also, in corresponding policy                      because prison officials could not point
                                             samples and maintain the information                     guidance to staff, the Bureau will ensure             to which rule the inmate actually
                                             in the Combined DNA Index System                         that staff are aware of the distinction               violated, there was insufficient notice to
                                             (CODIS). Although this commenter and                     between violation of this prohibited act              the inmate of the prohibited act and
                                             other inmates may have court orders                      code and management of pre-existing                   therefore a violation of due process. As
                                             requiring such testing upon their                        assets by a designated representative.                mentioned above, however, DHOs do
                                             release, these court orders are not                      Staff are currently aware that inmates                not use prohibited act codes 199, 299,
                                             inconsistent with the Bureau’s authority                 are permitted limited opportunities to                399, or 499 without referring to another
                                             to conduct testing during incarceration.                 protect personal assets (see 28 CFR                   code which is most like the inmate’s
                                             Because we are required to do this by                    540.14(d)(4)) or engage in an approved                present problematic conduct.
                                             statute, we need to have the specific                    special visit for the purpose of                         Comment: It is unfair to impose
                                             capability to discipline inmates who                     addressing a business matter (see 28                  monetary fines. One commenter was
                                             jeopardize the Bureau’s compliance                       CFR 540.45(a)).                                       concerned about what happens if a
                                             with the statute.                                           Comment: Codes 199, 299, 399 and                   monetary fine is not paid. That
                                                Comment: Code 296 could result in                     499 (‘‘Conduct most like’’ codes) are too             commenter opined that monetary fines
                                             lawsuits for infringement of the 6th                     vague.                                                are discriminatory and arbitrary in that
                                             Amendment right of access to the                            Bureau response: The Bureau gives                  inmates don’t have the ability to pay
                                             courts. Another inmate complained that                   guidance to its Discipline Hearing                    and those that do have an advantage.
                                             defective copying machines at her                        Officers (DHOs) that they are to use this                Bureau response: We made this
                                             institution resulted in staff making                     charge only when another charge of the                change to provide DHOs with the
                                             copies of legal material for inmates on                  same severity level is not applicable.                flexibility to sanction inmates by
                                             a staff copier only at times convenient                  These codes, along with codes 198, 298,               imposing monetary fines as a
                                             for staff. The inmate then complained                    398 and 498 (Conduct which disrupts or                punishment and deterrent to
                                             that she was therefore ‘‘forced’’ to send                interferes with the security or orderly               committing prohibited acts.
                                             originals to a legal assistant to copy and               running of the institution or the Bureau              Additionally, by providing another
                                             file, violating code 296 (sending                        of Prisons most like another prohibited               sanctioning option, DHOs are better able
                                             correspondence to an address with                        act in the same severity level) give the              to tailor the discipline of individual
                                             directions to have the correspondence                    Bureau flexibility to address unique                  inmates in a manner best suited to affect
                                             sent to an unauthorized person). She                     situations.                                           behavioral changes.
                                             concluded that code 296 should                              Currently, the DHO or Unit                            We also clarify that the sanctions of
jlentini on DSKJ8SOYB1PROD with RULES




                                             therefore exclude legal material.                        Disciplinary Committee (UDC) must                     ‘‘make monetary restitution’’ and
                                                Bureau Response: We do not intend to                  indicate in its findings a specific finding           ‘‘monetary fine’’ may only be imposed
                                             impede inmates’ Constitutional right to                  of the severity level of the conduct and              by DHOs after providing the inmate
                                             access courts. Code 296 is intended to                   a comparison to the offense in that                   with due process procedures. DHOs will
                                             sanction inmate behavior designed to                     severity level which the DHO/UDC                      have the benefit of seeing the total
                                             circumvent inmate correspondence                         finds is most comparable. Therefore,                  circumstances and situation of the


                                        VerDate Mar<15>2010    17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00012   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                                              Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations                                        76265

                                             inmate, and if, for example, the inmate                  ‘‘deleterious effect on inmates and puts              in SHU, mental health staff will
                                             is indigent, the DHO may choose                          the inmate in jeopardy of permanent                   examine the inmate, including a
                                             instead to impose a different sanction.                  psychological damage.’’ The commenter                 personal interview. Emergency medical
                                             DHOs are trained to sanction effectively                 recommended that these increases be                   and mental health care is always
                                             based on each inmate’s circumstances                     available only for ‘‘new criminal                     available.
                                             and the punitive value of the sanction                   behavior and not for incident reports                    Comment: Special Housing Unit
                                             for that particular inmate.                              that are minor in nature.’’                           (SHU) conditions are substandard. Two
                                                If a monetary fine imposed as a                          Bureau response: This change allows                commenters complained about SHU
                                             sanction by a DHO is not paid, the DHO                   us to more effectively discipline and                 conditions, and one opined that inmates
                                             will have the authority to order that the                more accurately reflects the serious                  in Administrative Detention (AD) status
                                             amount of the fine be ‘‘frozen’’ in that                 nature of all of the prohibited acts.                 should have the same amenities as those
                                             inmate’s deposit fund account so that                    There are several reasons that this time              in general population status.
                                             the amount of the fine would not be                      frame was chosen for the maximum                      Specifically, the commenter believes
                                             available for spending by the inmate.                    amount of disciplinary segregation:                   that ‘‘AD food should be the same as that
                                             Non-payment of a fine is not a                              Current disciplinary segregation (DS)              provided in general population,’’ ‘‘AD
                                             prohibited act and will not be a factor                  sanctions have been in place since                    inmates should be allowed the same
                                             for an inmate’s placement or                             January 5, 1988. In the past 16 years, the            amount of personal property as
                                             continuation in SHU.                                     inmate population has increased                       permitted for inmates in general
                                                Comment: Forfeiture of good time is                   dramatically, most recently to include                population,’’ and ‘‘AD inmates should
                                             unfair. One commenter states that,                       DC Code felony offenders. Likewise,                   not have telephone calls limited.’’
                                             before 1996, there was no forfeiture of                  because the population has also                          Bureau response: With regard to the
                                             good time, or good time could be                         changed dramatically, the nature and                  commenters concerns about sub-
                                             recouped. The commenter wrote: ‘‘Is it                   severity of prohibited acts committed                 standard conditions in Special Housing
                                             not discriminatory if those inmates who                  has intensified.                                      Units (SHU) for inmates in
                                             were sentenced before 1996 must now                         Specifically, the Bureau has seen an               Administrative Detention or
                                             face additional punishments that were                    increase in offenses related to gang-                 Disciplinary Segregation status, the
                                             not part of the scheme when they were                    related activity, firearms, and drugs.                Bureau’s policies for conditions in SHU
                                             originally sentenced?’’                                  Also, Federal offenses have expanded to               continue to exist and are applicable
                                                Bureau response: The sanction of                      include use of firearms, new drug-                    nationwide to ensure uniformity.
                                             forfeiture of good conduct time                          related offenses, conspiracies, and                      Also, § 541.31 provides that
                                             appeared in the previous regulations.                    higher penalties for homicides.                       conditions in SHU will ‘‘meet or exceed
                                             We do not intend to alter its application                   In addition, because sentence length               standards for healthy and humane
                                             through this rulemaking. Under                           has generally increased, the current                  treatment,’’ and subsection (d) provides
                                             previous regulations, which will be                      sanctions of 60–90 days of disciplinary               that food will be nutritionally adequate.
                                             incorporated into the Bureau’s Inmate                    segregation accounts for a much smaller               The staff-inmate ratio and other unique
                                             Discipline policy, an inmate sentenced                   percentage of the typical sentence.                   circumstances of each institution may
                                             under the Sentencing Reform Act                          Therefore, current DS sanctions no                    render it impractical to have food
                                             provisions of the Comprehensive Crime                    longer effectively function as a                      provided to inmates in SHU be exactly
                                             Control Act (committed his or her crime                  deterrent. We increase this sanction to               the same as that provided in general
                                             on or after November 1, 1987) may not                    reflect the needs and the nature of the               population.
                                             receive statutory good time, but is                      changing and expanding inmate                            With regard to personal property,
                                             eligible to receive 54 days good conduct                 population.                                           subsection (h) provides that personal
                                             time credit each year (18 U.S.C.                            Under the current disciplinary                     property may be limited for reasons of
                                             3624(b)). Once awarded, the credit is                    regulations, approximately 16% of                     fire safety or sanitation, but that inmates
                                             vested, and may not be disallowed.                       inmates committing prohibited acts                    in AD status will ordinarily be allowed
                                                However for crimes committed on or                    were repeat offenders who were                        a reasonable amount of personal
                                             after September 13, 1994, and before                     sanctioned to the maximum amount of                   property and access to the commissary.
                                             April 26, 1996, credit toward an                         disciplinary segregation sanction                     Inmates in DS status have been placed
                                             inmate’s service of sentence will not                    multiple times, resulting in 12 months                there as a disciplinary sanction, will
                                             vest unless the inmate has earned or is                  or more of total disciplinary segregation             have their personal property
                                             making satisfactory progress toward a                    time. Again, the current maximum DS                   impounded, with the exception of
                                             high school diploma or an equivalent                     sanction is not functioning as an                     limited reading/writing materials, and
                                             degree, or has been exempted from                        effective deterrent. Finally, it is                   religious articles, and their commissary
                                             participation because of a learning                      important to note that this regulation                privileges may be limited. These
                                             disability or other status.                              increases the maximum amount of the                   provisions regarding personal property
                                                In imposing this sanction, the DHO                    disciplinary segregation sanction                     are not substantively different from the
                                             will consider the severity of the                        available to DHOs. DHOs will only                     previous regulation or its application.
                                             prohibited act and the suggested                         impose the maximum amount of                             Telephone calls will be allowed in
                                             disallowance guidelines in making a                      disciplinary segregation in the most                  accordance with 28 CFR part 540,
                                             determination to disallow good conduct                   egregious circumstances for the most                  subpart I. Inmates in AD status may
                                             time in a non-discriminatory fashion.                    serious offenses.                                     have telephone calls limited by the staff-
                                             Disallowance of good conduct time is                        Also, with regard to the commenter’s               inmate ratio and unique circumstances
                                             not an ‘‘additional punishment.’’                        concern about the psychological effects               of that institution. For example, staff
jlentini on DSKJ8SOYB1PROD with RULES




                                                Comment: The increased disciplinary                   on inmates placed in SHU, we note that                may not be available at all times to
                                             segregation sanction time is unfair. One                 § 541.32 requires health services staff to            provide an AD inmate with access to a
                                             commenter believed that increasing the                   visit inmates in SHU daily to provide                 telephone and may, therefore, have to
                                             amount of time an inmate can                             necessary medical care. That regulation               schedule times to place calls. However,
                                             potentially be placed in disciplinary                    also indicates that, after every 30                   inmates in AD status will have
                                             segregation status as a sanction has a                   calendar days of continuous placement                 telephone privileges consistent with the


                                        VerDate Mar<15>2010    17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00013   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                             76266            Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations

                                             available resources and security needs                   telephone or other electronic device to               these reasons, the Bureau has
                                             of the institution.                                      reflect the potential seriousness of the              determined that such items constitute
                                                Comment: Inmates should be allowed                    conduct, which may result in aiding                   non-hazardous contraband and are
                                             to attend the 3-day review of their                      escape, continuing criminal activity,                 unauthorized for possession by inmates.
                                             placement in AD, and staff information                   facilitating terrorism, and a host of other             Code 108 prohibits possession,
                                             relevant to the AD placement should be                   potential threats to the safety, security,            manufacture, introduction, or loss of a
                                             presented then.                                          and orderly operation of correctional                 hazardous tool, and also gives a
                                                Bureau response: Section 541.26                       facilities, and for the protection of the             parenthetical list of examples of
                                             states that a Segregation Review Officer                 public.                                               hazardous tools. The list begins with a
                                             (SRO) will review supporting records                        Other changes: The Bureau also
                                                                                                                                                            description of hazardous tools: ‘‘tools
                                             within three work days of an inmate’s                    makes the following minor changes to
                                                                                                                                                            most likely to be used in an escape or
                                             placement in administrative detention                    the prohibited act codes to amend the
                                                                                                                                                            escape attempt or to serve as weapons
                                             (AD) status. This is a paper-review by                   parenthetical lists of examples of
                                             the SRO, not a hearing that can be                                                                             capable of doing serious bodily harm to
                                                                                                      contraband often found in inmates’
                                             attended by the inmate. The inmate has                                                                         others.’’ We amend this list to include
                                                                                                      possession:
                                             an opportunity to attend a formal review                    Code 331 prohibits possession,                     body armor, maps, handmade rope, or
                                             hearing both within seven days of                        manufacture, introduction, or loss of a               other escape paraphernalia. This adds
                                             placement in AD status and every thirty                  non-hazardous tool, equipment,                        more specificity to this prohibited act
                                             days thereafter.                                         supplies, or other non-hazardous                      code and serves to put inmates on
                                                Comment: Table 4 (Sanctions) should                   contraband. Following this prohibited                 greater notice of items considered
                                             not be eliminated because it provides                    act code in the table in § 541.03, there              hazardous.
                                             directions for DHOs and without it,                      is a parenthetical description listing                  These are minor amendments to the
                                             DHOs will not follow these processes.                    examples of non-hazardous contraband.                 parenthetical lists of examples of
                                                Bureau response: The table describing                 We amend this list to include smoking                 contraband often found in inmates’
                                             how DHOs are to impose sanctions will                    apparatus and tobacco in any form                     possession. The lists of examples are
                                             not be eliminated, but rather moved                      where prohibited, and unauthorized                    intended to be illustrative, not
                                             from Federal regulations language to                     nutritional/dietary supplements.                      exhaustive.
                                             Bureau policy implementing text. It will                    28 CFR 551.162(b)(2) indicates that
                                             continue to exist as instruction to staff                Wardens may, with the Regional                        Executive Order 12866
                                             in the Bureau’s Inmate Discipline                        Director’s concurrence, prohibit inmate                 This regulation has been drafted and
                                             policy. The Bureau’s policies constitute                 smoking other than for authorized                     reviewed in accordance with Executive
                                             mandatory staff procedures and                           religious activities. We therefore make               Order 12866, ‘‘Regulatory Planning and
                                             guidance imposed by the Director.                        this conforming amendment to clarify                  Review’’, section 1(b), Principles of
                                             DHOs also receive extensive training                     that smoking apparatus and tobacco are                Regulation. The Director, Bureau of
                                             and continual guidance regarding                         non-hazardous contraband and are                      Prisons has determined that this
                                             imposition of sanctions.                                 prohibited in institutions where                      regulation is a ‘‘significant regulatory
                                                Comment: Possession of cell phones                    Wardens have prohibited inmate                        action’’ under Executive Order 12866,
                                             should be under Code 297 instead of in                   smoking.                                              section 3(f), and accordingly this
                                             the greatest severity category, unless the                  We also include unauthorized
                                                                                                                                                            regulation has been reviewed by the
                                             cell phone is used for criminal activity.                nutritional/dietary supplements in the
                                                                                                                                                            Office of Management and Budget.
                                                Bureau response: The Bureau chooses                   list of examples of non-hazardous
                                             to make possession of a cellular                         contraband for the following reasons:                 Executive Order 13132
                                             telephone or other electronic device a                   The Bureau has been finding inmates in
                                             Greatest level prohibited act for the                    possession of various types of herbal/                  This regulation will not have
                                             following reasons:                                       dietary supplement items. However,                    substantial direct effects on the States,
                                                Rapid technological advances have                     these items do not fall under the same                on the relationship between the national
                                             resulted in smaller cell phones which                    Food and Drug Administration (FDA)                    government and the States, or on
                                             are easier to introduce into Bureau                      rules and regulations, including quality              distribution of power and
                                             facilities. They may be purchased with                   assurance measures, as medications.                   responsibilities among the various
                                             very little accountability at a very low                 This has resulted in negative health                  levels of government. Under Executive
                                             cost by those seeking to introduce them                  outcomes for those taking such herbal/                Order 13132, this regulation does not
                                             into Bureau facilities. Also, new                        dietary supplements. These                            have sufficient federalism implications
                                             wireless communications devices are                      supplements have not passed through                   for which we would prepare a
                                             being introduced to the market with                      the same rigorous trials as FDA-                      Federalism Assessment.
                                             increasing frequency, and are likewise                   approved medication in regards to                     Regulatory Flexibility Act
                                             small and easy to introduce. This is                     safety, efficacy, adverse reactions, good
                                             causing an increase in the number of                     manufacturing practices, etc.                           The Director of the Bureau of Prisons,
                                             electronic devices being introduced into                    The FDA has made several                           under the Regulatory Flexibility Act (5
                                             Bureau facilities.                                       announcements regarding the dangerous                 U.S.C. 605(b)), reviewed this regulation.
                                                When the Bureau first began                           effects of dietary supplements. Some of               By approving it, the Director certifies
                                             investigating the potential problem in                   these announcements, which can be                     that it will not have a significant
                                             2003, we discovered that during that                     found at http://www.fda.gov, include                  economic impact upon a substantial
                                             calendar year, institutions reported                     warnings against ‘‘nicotene water,’’ kava             number of small entities because: This
jlentini on DSKJ8SOYB1PROD with RULES




                                             confiscating 270 cellular telephones                     associated with severe liver injury, PC/              regulation is about the correctional
                                             from inmates. At least two inmates                       SPES and SPES (which contain the                      management of offenders committed to
                                             escaped from minimum security                            harmful compounds warfarin and                        the custody of the Attorney General or
                                             facilities while in possession of cellular               alprazolam), LipoKietix (which causes                 the Director of the Bureau of Prisons,
                                             telephones. We therefore increased the                   serious liver injuries), nettle (which has            and its economic impact is limited to
                                             severity level for possession of a cellular              high lead content), and many others. For              the Bureau’s appropriated funds.


                                        VerDate Mar<15>2010    17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00014   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                                                 Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations                                        76267

                                             Unfunded Mandates Reform Act of                             Subchapter C—Institutional Management                 Bureau staff to impose sanctions on
                                             1995                                                                                                              inmates who commit prohibited acts.
                                                                                                         PART 541—INMATE DISCIPLINE AND                        Sanctions will not be imposed in a
                                               This regulation will not cause State,                     SPECIAL HOUSING UNITS                                 capricious or retaliatory manner. The
                                             local and Tribal governments, or the                                                                              Bureau’s inmate discipline program is
                                                                                                         ■ 1. Revise the authority citation for part
                                             private sector, to spend $100,000,000 or                    541 to read as follows:                               authorized by 18 U.S.C. 4042(a)(3).
                                             more in any one year, and it will not
                                             significantly or uniquely affect small                         Authority: 5 U.S.C. 301; 18 U.S.C. 3621,           § 541.2    Application.
                                                                                                         3622, 3624, 4001, 4042, 4081, 4082 (Repealed
                                             governments. We do not need to take                                                                                 This program applies to sentenced
                                                                                                         in part as to offenses committed on or after
                                             action under the Unfunded Mandates                          November 1, 1987), 4161–4166 (Repealed as             and unsentenced inmates in Bureau
                                             Reform Act of 1995.                                         to offenses committed on or after November            custody. It also applies to sentenced and
                                             Small Business Regulatory Enforcement
                                                                                                         1, 1987), 5006–5024 (Repealed October 12,             unsentenced inmates designated to any
                                                                                                         1984 as to offenses committed after that              prison, institution, or facility in which
                                             Fairness Act of 1996                                        date), 5039; 28 U.S.C. 509, 510.                      persons are held in custody by direction
                                                This regulation is not a major rule as                   ■ 2. Revise Subpart A to Part 541 to read             of, or under an agreement with, the
                                             defined by § 804 of the Small Business                      as follows:                                           Bureau of Prisons.
                                             Regulatory Enforcement Fairness Act of                                                                            § 541.3 Prohibited acts and available
                                                                                                         Subpart A—Inmate Discipline Program
                                             1996. This regulation will not result in                                                                          sanctions.
                                             an annual effect on the economy of                          Sec.
                                                                                                         541.1 Purpose.                                          (a) Prohibited acts. The list of
                                             $100,000,000 or more; a major increase                      541.2 Application.
                                             in costs or prices; or significant adverse                                                                        prohibited acts are divided into four
                                                                                                         541.3 Prohibited acts and available                   separate categories based on severity:
                                             effects on competition, employment,                              sanctions.
                                             investment, productivity, innovation, or                    541.4 Loss of good conduct sentence credit
                                                                                                                                                               Greatest; High; Moderate; and Low. We
                                             on the ability of United States-based                            as a mandatory sanction.                         describe the prohibited acts in Table 1—
                                             companies to compete with foreign-                          541.5 Discipline process.                             Prohibited Acts and Available
                                             based companies in domestic and                             541.6 Mentally ill inmates.                           Sanctions. Aiding, attempting, abetting,
                                             export markets.                                             541.7 Unit Discipline Committee (UDC)                 or making plans to commit any of the
                                                                                                              review.                                          prohibited acts is treated the same as
                                             List of Subjects in 28 CFR Part 541                         541.8 Discipline Hearing Officer (DHO)                committing the act itself.
                                                                                                              hearing.
                                                                                                                                                                 (b) Available sanctions. The list of
                                                 Prisoners.                                                                                                    available sanctions for committing
                                                                                                         Subpart A—Inmate Discipline Program
                                             Harley G. Lappin,                                                                                                 prohibited acts is listed in Table 1—
                                                                                                         § 541.1   Purpose.                                    Prohibited Acts and Available
                                             Director, Bureau of Prisons.
                                                                                                           This subpart describes the Federal                  Sanctions. If you commit repetitive
                                             ■ Under rulemaking authority vested in                      Bureau of Prisons’ (Bureau) inmate                    prohibited acts, we can impose
                                             the Attorney General in 5 U.S.C. 301; 28                    discipline program. This program helps                increased sanctions, as listed in Table
                                             U.S.C. 509, 510 and delegated to the                        ensure the safety, security, and orderly              2—Additional Available Sanctions for
                                             Director, Bureau of Prisons, we amend                       operation of correctional facilities, and             Repeated Prohibited Acts Within the
                                             28 CFR part 541 as follows.                                 the protection of the public, by allowing             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 clas-
                                                                    sified 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 safe-
                                                                    ty; 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 indi-
                                                                    vidual by the medical staff.
                                             112 ...........     Use of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the med-
jlentini on DSKJ8SOYB1PROD with RULES




                                                                    ical 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.



                                        VerDate Mar<15>2010       17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00015   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM    08DER1
                                             76268                Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations

                                                  TABLE 1—PROHIBITED ACTS AND AVAILABLE SANCTIONS GREATEST SEVERITY LEVEL PROHIBITED ACTS—Continued
                                             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 of-
                                                                     fending 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 sanc-
                                                                     tion 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 subse-
                                                                     quent 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 de-
                                                                     stroying, 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 en-
                                                                     counter, 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 accom-
                                                                     plished 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 receiv-
                                                                     ing a letter or mail through unauthorized means; sending mail for other inmates without authorization; sending correspondence to
jlentini on DSKJ8SOYB1PROD with RULES




                                                                     a specific address with directions or intent to have the correspondence sent to an unauthorized person; and using a fictitious re-
                                                                     turn 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.



                                        VerDate Mar<15>2010        17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00016   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                                                  Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations                                     76269

                                                  TABLE 1—PROHIBITED ACTS AND AVAILABLE SANCTIONS GREATEST SEVERITY LEVEL PROHIBITED ACTS—Continued
                                             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 sanc-
                                                                     tion 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 na-
                                                                     ture 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 oth-
                                                                     ers, 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).
jlentini on DSKJ8SOYB1PROD with RULES




                                             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 fur-
                                                                     ther 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 tele-
                                                                     phone use, content of the call, or the number called; or to commit or further a Moderate category prohibited act.



                                        VerDate Mar<15>2010        17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00017   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                             76270                Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations

                                                  TABLE 1—PROHIBITED ACTS AND AVAILABLE SANCTIONS GREATEST SEVERITY LEVEL PROHIBITED ACTS—Continued
                                             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             Frequency of
                                                       Prohibited act severity level                    prior offense                                                     Additional available sanctions
                                                                                                                                 repeated offense
                                                                                                        (same code)

                                             Low Severity (400 level) .........................      6 months ...............   2nd offense ...........     1. Disciplinary segregation (up to 1 month).
jlentini on DSKJ8SOYB1PROD with RULES




                                                                                                                                                            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 of-             Any available Moderate severity level sanction (300 se-
                                                                                                                                  fense                       ries).
                                             Moderate Severity (300 level) ................          12 months .............    2nd offense ...........     1. Disciplinary segregation (up to 6 months).



                                        VerDate Mar<15>2010        17:00 Dec 07, 2010   Jkt 223001    PO 00000    Frm 00018     Fmt 4700   Sfmt 4700      E:\FR\FM\08DER1.SGM   08DER1
                                                              Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations                                                76271

                                                TABLE 2—ADDITIONAL AVAILABLE SANCTIONS FOR REPEATED PROHIBITED ACTS WITHIN THE SAME SEVERITY LEVEL—
                                                                                             Continued
                                                                                                    Time period for            Frequency of
                                                    Prohibited act severity level                    prior offense                                                    Additional available sanctions
                                                                                                                             repeated offense
                                                                                                     (same code)

                                                                                                                                                        2. Forfeit earned SGT or non-vested GCT up to 371⁄2% or
                                                                                                                                                          up to 45 days, whichever is less, and/or terminate or
                                                                                                                                                          disallow EGT (an EGT sanction may not be sus-
                                                                                                                                                          pended).
                                                                                                                            3rd or more of-             Any available High severity level sanction (200 series).
                                                                                                                              fense.
                                             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 sus-
                                                                                                                                                          pended).
                                                                                                                            3rd or more of-             Any available Greatest severity level sanction (100 se-
                                                                                                                              fense                       ries).
                                             Greatest Severity (100 level) .................      24 months .............   2nd or more of-             Disciplinary Segregation (up to 18 months).
                                                                                                                              fense.



                                             § 541.4 Loss of good conduct sentence                       your good conduct sentence credit                           (3) Informally resolving the incident
                                             credit as a mandatory sanction.                             availability.                                             report. The incident report may be
                                                (a) You will lose good conduct                             (4) Low Severity Level Offenses. You                    informally resolved at any stage of the
                                             sentence credit as a mandatory                              will lose at least 7 days, or 12.5% of                    disciplinary process, except for
                                             disciplinary sanction if you are in one                     available credit if less than 54 days are                 prohibited acts in the Greatest and High
                                             of the following two groups:                                available for the prorated period, after                  severity levels, or as otherwise required
                                                (1) VCCLEA-violent inmates. The date                     committing three or more Low severity                     by law or these regulations. If the
                                             of your U.S. Code offense was on or                         acts during the current year of your                      incident report is informally resolved, it
                                             after September 13, 1994, but before                        good conduct sentence credit                              will be removed from your records.
                                             April 26, 1996, and you committed a                         availability.
                                                                                                                                                                   § 541.6    Mentally ill inmates.
                                             ‘‘crime of violence’’ as defined by the                     § 541.5    Discipline process.
                                             Violent Crime Control and Law                                                                                           If it appears you are mentally ill at
                                             Enforcement Act of 1994 (VCCLEA); or                           (a) Incident report. The discipline                    any stage of the discipline process, you
                                                                                                         process starts when staff witness or                      will be examined by mental health staff.
                                                (2) PLRA inmates and DC Code                             reasonably believe that you committed a
                                             offenders. The date of your U.S. Code                                                                                   (a) Competency to Participate in
                                                                                                         prohibited act. A staff member will                       Disciplinary Proceedings. If evidence
                                             offense was on or after April 26, 1996,                     issue you an incident report describing
                                             and, therefore, under the Prison                                                                                      indicates that you cannot understand
                                                                                                         the incident and the prohibited act(s)                    the nature of the disciplinary
                                             Litigation Reform Act (PLRA), or the                        you are charged with committing. You
                                             date of your District of Columbia (DC)                                                                                proceedings, or cannot help in your own
                                                                                                         will ordinarily receive the incident                      defense, disciplinary proceedings may
                                             Code offense was on or after August 5,                      report within 24 hours of staff becoming
                                             2000.                                                                                                                 be postponed until you are competent to
                                                                                                         aware of your involvement in the                          participate. The Unit Disciplinary
                                                (b) If you are an inmate in one of the                   incident.                                                 Committee or Discipline Hearing Officer
                                             above groups and commit a prohibited                           (b) Investigation. After you receive an                will make this decision based on
                                             act, you will lose good conduct sentence                    incident report, a Bureau staff member                    evidence, including evidence presented
                                             credit as a mandatory disciplinary                          will investigate it.                                      by mental health staff.
                                             sanction. The amount of good conduct                          (1) Information: The investigator will                    (b) Responsibility for Conduct. You
                                             sentence credit you will lose depends                       specifically inform you:                                  will not be disciplined for conduct
                                             on the severity level of the prohibited                       (A) of the charge(s) against you; and                   committed when, as the result of a
                                             act(s) committed, as follows:                                 (B) that you may remain silent at all                   severe mental disease or defect, you
                                                (1) Greatest Severity Level Offenses.                    stages of the discipline process, but that                were unable to appreciate the nature
                                             You will lose at least 41 days, or 75%                      your silence may be used to draw an                       and quality, or wrongfulness of the act.
                                             of available credit if less than 54 days                    adverse inference against you at any                      The UDC or DHO will make this
                                             are available for the prorated period, for                  stage of the process. Your silence alone,                 decision based on evidence, including
                                             each act committed.                                         however, cannot be the basis for finding                  evidence presented by mental health
                                                (2) High Severity Level Offenses. You                    you committed the prohibited act(s).                      staff.
                                             will lose at least 27 days, or 50% of                         (2) Statement: When the investigator
                                             available credit if less than 54 days are                   asks for your statement, you may give an                  § 541.7 Unit Discipline Committee (UDC)
                                             available for the prorated period, for                      explanation of the incident, request any                  review of the incident report.
                                             each act committed.                                         witnesses be interviewed, or request                         A Unit Discipline Committee (UDC)
jlentini on DSKJ8SOYB1PROD with RULES




                                                (3) Moderate Severity Level Offenses.                    that other evidence be obtained and                       will review the incident report once the
                                             You will lose at least 14 days, or 25%                      reviewed. However, the staff                              staff investigation is complete. The
                                             of available credit if less than 54 days                    investigation of the incident report may                  UDC’s review involves the following:
                                             are available for the prorated period,                      be suspended before requesting your                          (a) Available dispositions. The UDC
                                             after committing two or more Moderate                       statement if it is being investigated for                 will make one of the following decisions
                                             severity acts during the current year of                    possible criminal prosecution.                            after reviewing the incident report:


                                        VerDate Mar<15>2010    17:00 Dec 07, 2010    Jkt 223001    PO 00000   Frm 00019     Fmt 4700   Sfmt 4700      E:\FR\FM\08DER1.SGM    08DER1
                                             76272            Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations

                                                (1) You committed the prohibited                        (h) Written report. You will receive a              entitled to have the staff representative
                                             act(s) charged, and/or a similar                         written copy of the UDC’s decision                    appear and assist you in understanding
                                             prohibited act(s) as described in the                    following its review of the incident                  the proceedings. The staff representative
                                             incident report;                                         report.                                               can also assist you in presenting
                                                (2) You did not commit the prohibited                   (i) Appeals. You may appeal the                     evidence during the DHO’s hearing.
                                             act(s) charged; or                                       UDC’s action(s) through the                              (3) How the staff representative may
                                                (3) The incident report will be                       Administrative Remedy Program, 28                     appear. Your staff representative may
                                             referred to the Discipline Hearing                       CFR part 542, subpart B.                              appear either in person or electronically
                                             Officer (DHO) for further review, based                                                                        (for example, by video or telephone
                                             on the seriousness of the prohibited                     § 541.8 Discipline Hearing Officer (DHO)
                                                                                                      hearing.
                                                                                                                                                            conferencing) at the DHO’s discretion. If
                                             act(s) charged.                                                                                                your staff representative is not available
                                                (4) If you are charged with a Greatest                   The Discipline Hearing Officer (DHO)               for the scheduled hearing, you may
                                             or High severity prohibited act, or are an               will only conduct a hearing on the                    either select another staff representative,
                                             inmate covered by § 541.04, the UDC                      incident report if referred by the UDC.               request the hearing be postponed for a
                                             will automatically refer the incident                    The DHO’s hearing involves the                        reasonable amount of time until your
                                             report to the DHO for further review.                    following:                                            staff representative can appear, or
                                                (b) UDC members. The UDC                                 (a) Available dispositions. The DHO
                                                                                                                                                            proceed without a staff representative.
                                             ordinarily consists of two or more staff.                will make one of the following decisions
                                                                                                                                                               (e) Inmate appearance. You are
                                             UDC members will not be victims,                         after a hearing on the incident report:
                                                                                                                                                            permitted to appear before the DHO
                                             witnesses, investigators, or otherwise                      (1) You committed the prohibited
                                                                                                                                                            during the hearing on the incident
                                             significantly involved in the incident.                  act(s) charged, and/or a similar
                                                                                                                                                            report as follows:
                                                (c) Timing. The UDC will ordinarily                   prohibited act(s) as described in the
                                                                                                      incident report;                                         (1) You may appear either in person
                                             review the incident report within five                                                                         or electronically (for example, by video
                                             work days after it is issued, not counting                  (2) You did not commit the prohibited
                                                                                                      act(s) charged; or                                    or telephone conferencing), at the
                                             the day it was issued, weekends, and                                                                           DHO’s discretion.
                                             holidays. UDC review of the incident                        (3) The incident report will be
                                                                                                      referred back for further investigation,                 (2) Your appearance may be
                                             report may also be suspended if it is                                                                          prohibited during DHO deliberations or
                                             being investigated for possible criminal                 review, and disposition.
                                                                                                         (b) Discipline Hearing Officer. The                when your presence would jeopardize
                                             prosecution.                                                                                                   institution security, at the DHO’s
                                                (d) Inmate appearance. You are                        DHO will be an impartial decision
                                                                                                      maker who was not a victim, witness,                  discretion.
                                             permitted to appear before the UDC
                                                                                                      investigator, or otherwise significantly                 (3) You may waive your appearance
                                             during its review of the incident report,
                                                                                                      involved in the incident.                             before the DHO. If you waive your
                                             except during UDC deliberations or
                                                                                                         (c) Timing. You will receive written               appearance, the DHO hearing will be
                                             when your presence would jeopardize
                                                                                                      notice of the charge(s) against you at                conducted in your absence.
                                             institution security, at the UDC’s
                                                                                                      least 24 hours before the DHO’s hearing.                 (4) If you escape or are otherwise
                                             discretion. Also:
                                                (1) You may appear either in person                   You may waive this requirement, in                    absent from custody, the DHO will
                                             or electronically (for example, by video                 which case the DHO’s hearing can be                   conduct a hearing in your absence at the
                                             or telephone conferencing) at the UDC’s                  conducted sooner.                                     institution where you were last
                                             discretion.                                                 (d) Staff Representative. You are                  confined.
                                                (2) You may waive your appearance                     entitled to have a staff representative                  (f) Evidence and witnesses. You are
                                             before the UDC. If you waive your                        during the DHO hearing process as                     entitled to make a statement and present
                                             appearance, the UDC will review the                      follows:                                              documentary evidence to the DHO on
                                             incident report in your absence.                            (1) How to get a staff representative.             your own behalf. The DHO will
                                                (3) If you escape or are otherwise                    You may request the staff representative              consider all evidence presented during
                                             absent from custody, the UDC will                        of your choice, so long as that person                the hearing. The DHO’s decision will be
                                             conduct a review in your absence at the                  was not a victim, witness, investigator,              based on at least some facts and, if there
                                             institution where you were last                          or otherwise significantly involved in                is conflicting evidence, on the greater
                                             confined.                                                the incident. If your request(s) cannot be            weight of the evidence. Witnesses may
                                                (e) Evidence. You are entitled to make                fulfilled, and you still want a staff                 appear at the DHO’s hearing as follows:
                                             a statement and present documentary                      representative, the Warden will appoint                  (1) Witnesses may appear before the
                                             evidence to the UDC on your own                          one. The Warden will also appoint a                   DHO either in person or electronically
                                             behalf. The UDC will consider all                        staff representative if it appears you are            (for example, by video or telephone
                                             evidence presented during its review.                    unable to adequately represent yourself               conferencing) at the DHO’s discretion.
                                             The UDC’s decision will be based on at                   before the DHO, for example, if you are                  (2) The DHO will call witnesses who
                                             least some facts and, if there is                        illiterate or have difficulty                         have information directly relevant to the
                                             conflicting evidence, on the greater                     understanding the charges against you.                charge(s) and who are reasonably
                                             weight of the evidence.                                     (2) How the staff representative will              available. However, the DHO need not
                                                (f) Sanctions. If you committed a                     help you. Prior to the DHO’s hearing,                 call witnesses adverse to you if their
                                             prohibited act(s), the UDC can impose                    the staff representative will be available            testimony is adequately summarized in
                                             any of the available sanctions listed in                 to help you understand the incident                   the incident report or other
                                             Tables 1 and 2, except loss of good                      report charges and potential                          investigation materials.
                                             conduct sentence credit, disciplinary                    consequences. The staff representative                   (3) You or your staff representative
jlentini on DSKJ8SOYB1PROD with RULES




                                             segregation, or monetary fines.                          may also assist you by speaking with                  may request witnesses appear at the
                                                (g) Referral to the DHO. If the UDC                   and scheduling witnesses, obtaining                   hearing to testify on your behalf. Your
                                             refers the incident report to the DHO for                written statements, and otherwise                     requested witnesses may not appear if,
                                             further review, the UDC will advise you                  helping you prepare evidence for                      in the DHO’s discretion, they are not
                                             of your rights at the upcoming DHO                       presentation at the DHO’s hearing.                    reasonably available, their presence at
                                             hearing, as detailed in § 541.08.                        During the DHO’s hearing, you are                     the hearing would jeopardize institution


                                        VerDate Mar<15>2010    17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00020   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                                              Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations                                          76273

                                             security, or they would present                          Subpart B—Special Housing Units                         (3) Protection cases. You requested, or
                                             repetitive evidence.                                                                                           staff determined you need,
                                                (4) If your requested witnesses are                   § 541.20    Purpose.                                  administrative detention status for your
                                             unavailable to appear, written                             This subpart describes the Federal                  own protection.
                                             statements can be requested by either                    Bureau of Prisons’ (Bureau) operation of                (4) Post-disciplinary detention. You
                                             the DHO or staff representative. The                     special housing units (SHU) at Bureau                 are ending confinement in disciplinary
                                             written statements can then be                           institutions. The Bureau’s operation of               segregation status, and your return to
                                             considered during the DHO’s hearing.                     SHUs is authorized by 18 U.S.C.                       the general population would threaten
                                                (5) Only the DHO may directly                         4042(a)(2) and (3).                                   the safety, security, and orderly
                                             question witnesses at the DHO’s                                                                                operation of a correctional facility, or
                                                                                                      § 541.21    Special Housing Units (SHUs).             public safety.
                                             hearing. Any questions by you or your
                                             staff representative must be submitted to                   Special Housing Units (SHUs) are
                                                                                                      housing units in Bureau institutions                  § 541.24   Disciplinary segregation status.
                                             the DHO, who will present the question                                                                           You may be placed in disciplinary
                                             to the witness in his/her discretion.                    where inmates are securely separated
                                                                                                      from the general inmate population, and               segregation status only by the DHO as a
                                                (6) The DHO may consider evidence                                                                           disciplinary sanction.
                                                                                                      may be housed either alone or with
                                             provided by a confidential informant
                                                                                                      other inmates. Special housing units
                                             (CI) that the DHO finds reliable. You                                                                          § 541.25 Notice received when placed in
                                                                                                      help ensure the safety, security, and                 the SHU.
                                             will not be informed of the CI’s identity.
                                                                                                      orderly operation of correctional                       You will be notified of the reason(s)
                                             You will be informed of the CI’s
                                                                                                      facilities, and protect the public, by                you are placed in the SHU as follows:
                                             testimony to the extent it will not
                                                                                                      providing alternative housing                           (a) Administrative detention status.
                                             jeopardize institution security, at the
                                                                                                      assignments for inmates removed from                  When placed in administrative
                                             DHO’s discretion.
                                                                                                      the general population.                               detention status, you will receive a copy
                                                (g) Sanctions. If you committed a
                                             prohibited act(s), the DHO can impose                    § 541.22    Status when placed in the SHU.            of the administrative detention order,
                                             any of the available sanctions listed in                                                                       ordinarily within 24 hours, detailing the
                                                                                                         When placed in the SHU, you are
                                             Tables 1 and 2.                                                                                                reason(s) for your placement. However,
                                                                                                      either in administrative detention status
                                                (h) Written Report. You will receive a                                                                      when placed in administrative
                                                                                                      or disciplinary segregation status.
                                             written copy of the DHO’s decision                                                                             detention status pending classification
                                                                                                         (a) Administrative detention status.
                                             following the hearing. The DHO is not                                                                          or while in holdover status, you will not
                                                                                                      Administrative detention status is an
                                             required to prepare a verbatim record of                                                                       receive an administrative detention
                                                                                                      administrative status which removes
                                             the hearing. The DHO’s written report                                                                          order.
                                                                                                      you from the general population when                    (b) Disciplinary segregation status.
                                             will document the following:                             necessary to ensure the safety, security,
                                                (1) Whether you were advised of your                                                                        When you are to be placed in
                                                                                                      and orderly operation of correctional                 disciplinary segregation status as a
                                             rights during the DHO process;                           facilities, or protect the public.                    sanction for violating Bureau
                                                (2) The evidence relied on by the                     Administrative detention status is non-               regulations, you will be informed by the
                                             DHO;                                                     punitive, and can occur for a variety of              DHO at the end of your discipline
                                                (3) The DHO’s decision;                               reasons.                                              hearing.
                                                (4) The sanction imposed by the DHO;                     (b) Disciplinary segregation status.
                                             and                                                      Disciplinary segregation status is a                  § 541.26   Review of placement in the SHU.
                                                (5) The reason(s) for the sanction(s)                 punitive status imposed only by a                       Your placement in the SHU will be
                                             imposed.                                                 Discipline Hearing Officer (DHO) as a                 reviewed by the Segregation Review
                                                (i) Appeals. You may appeal the                       sanction for committing a prohibited                  Official (SRO) as follows:
                                             DHO’s action(s) through the                              act(s).                                                 (a) Three day review. Within three
                                             Administrative Remedy Program, 28                                                                              work days of your placement in
                                                                                                      § 541.23    Administrative detention status.          administrative detention status, not
                                             CFR part 542, subpart B.
                                                                                                        You may be placed in administrative                 counting the day you were admitted,
                                             ■ 3. Revise subpart B to read as follows:
                                                                                                      detention status for the following                    weekends, and holidays, the SRO will
                                             Subpart B—Special Housing Units                          reasons:                                              review the supporting records. If you are
                                             Sec.                                                       (a) Pending Classification or                       in disciplinary segregation status, this
                                             541.20 Purpose.                                          Reclassification. You are a new                       review will not occur.
                                             541.21 Special Housing Units (SHUs).                     commitment pending classification or                    (b) Seven day reviews. Within seven
                                             541.22 Status when placed in the SHU.                    under review for Reclassification.                    continuous calendar days of your
                                             541.23 Administrative detention status.                    (b) Holdover Status. You are in
                                             541.24 Disciplinary segregation status.
                                                                                                                                                            placement in either administrative
                                                                                                      holdover status during transfer to a                  detention or disciplinary segregation
                                             541.25 Notice received when placed in the
                                                  SHU.                                                designated institution or other                       status, the SRO will formally review
                                             541.26 Review of placement in the SHU.                   destination.                                          your status at a hearing you can attend.
                                             541.27 Protection case—placement in                        (c) Removal from general population.                Subsequent reviews of your records will
                                                  Administrative Detention Status.                    Your presence in the general population               be performed in your absence by the
                                             541.28 Protection case-review of placement               poses a threat to life, property, self, staff,        SRO every seven continuous calendar
                                                  in the SHU.                                         other inmates, the public, or to the                  days thereafter.
                                             541.29 Staff verification of need for                    security or orderly running of the                      (c) Thirty day reviews. After every 30
                                                  protection.                                         institution and:                                      calendar days of continuous placement
jlentini on DSKJ8SOYB1PROD with RULES




                                             541.30 Lack of verification of need for                    (1) Investigation. You are under
                                                  protection.
                                                                                                                                                            in either administrative detention or
                                             541.31 Conditions of confinement in the
                                                                                                      investigation or awaiting a hearing for               disciplinary segregation status, the SRO
                                                  SHU.                                                possibly violating a Bureau regulation or             will formally review your status at a
                                             541.32 Medical and mental health care in                 criminal law;                                         hearing you can attend.
                                                  the SHU.                                              (2) Transfer. You are pending transfer                (d) Administrative remedy program.
                                             541.33 Release from the SHU.                             to another institution or location;                   You can submit a formal grievance


                                        VerDate Mar<15>2010    17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00021   Fmt 4700   Sfmt 4700   E:\FR\FM\08DER1.SGM   08DER1
                                             76274            Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations

                                             challenging your placement in the SHU                    you refuse to return to the general                   religious articles. Also, your
                                             through the Administrative Remedy                        population under these circumstances,                 commissary privileges may be limited.
                                             Program, 28 CFR part 542, subpart B.                     you may be subject to disciplinary                       (i) Correspondence. You will receive
                                                                                                      action.                                               correspondence privileges according to
                                             § 541.27 Protection case—placement in
                                             Administrative Detention status.                         § 541.31    Conditions of confinement in the          part 540, subpart B.
                                               You may be placed in administrative                    SHU.                                                     (j) Telephone. You will receive
                                             detention status as a protection case in                    Your living conditions in the SHU                  telephone privileges according to part
                                             the following circumstances.                             will meet or exceed standards for                     540, subpart I.
                                               (a) Victim of inmate assault or threats.               healthy and humane treatment,                            (k) Visiting. You will receive visiting
                                             You were the victim of an inmate                         including, but not limited to, the                    privileges according to part 540,
                                             assault, or are being threatened by other                following specific conditions:                        subpart D.
                                             inmates, including threats of harm if                       (a) Environment. Your living quarters
                                             you do not act in a certain way, for                                                                             (l) Legal Activities. You will receive
                                                                                                      will be well-ventilated, adequately                   an opportunity to perform personal legal
                                             example, threats of harm unless you                      lighted, appropriately heated, and
                                             engage in sexual activity.                                                                                     activities according to part 543,
                                                                                                      maintained in a sanitary condition.                   subpart B.
                                               (b) Inmate informant. Your safety is                      (b) Cell Occupancy. Your living
                                             threatened because you provided, or are                  quarters will ordinarily house only the                 (m) Staff monitoring. You will be
                                             perceived as having provided,                            amount of occupants for which it is                   monitored by staff assigned to the SHU,
                                             information to staff or law enforcement                  designed. The Warden, however, may                    including program and unit team staff.
                                             authorities regarding other inmates or                   authorize more occupants so long as                     (n) Programming Activities. In
                                             persons in the community.                                adequate standards can be maintained.                 administrative detention status, you will
                                               (c) Inmate refusal to enter general                       (c) Clothing. You will receive                     have access to programming activities to
                                             population. You refuse to enter the                      adequate institution clothing, including              the extent safety, security, orderly
                                             general population because of alleged                    footwear, while housed in the SHU. You                operation of a correctional facility, or
                                             pressures or threats from unidentified                   will be provided necessary                            public safety are not jeopardized. In
                                             inmates, or for no expressed reason.                     opportunities to exchange clothing and/               disciplinary segregation status, your
                                               (d) Staff concern. Based on evidence,
                                                                                                      or have it washed.                                    participation in programming activities,
                                             staff believe your safety may be
                                                                                                         (d) Bedding. You will receive a                    e.g., educational programs, may be
                                             seriously jeopardized by placement in
                                                                                                      mattress, blankets, a pillow, and linens              suspended.
                                             the general population.
                                                                                                      for sleeping. You will receive necessary                (o) Administrative remedy program.
                                             § 541.28 Protection case—review of                       opportunities to exchange linens.                     You can submit a formal grievance
                                             placement in the SHU.                                       (e) Food. You will receive                         challenging any aspect of your
                                                (a) Staff investigation. Whenever you                 nutritionally adequate meals.                         confinement in the SHU through the
                                             are placed in the SHU as a protection                       (f) Personal hygiene. You will have                Administrative Remedy Program, 28
                                             case, whether requested by you or staff,                 access to a wash basin and toilet. You                CFR part 542, subpart B.
                                             an investigation will occur to verify the                will receive personal items necessary to
                                             reasons for your placement.                              maintain an acceptable level of personal              § 541.32 Medical and mental health care in
                                                (b) Hearing. You will receive a                       hygiene, for example, toilet tissue, soap,            the SHU.
                                             hearing according to the procedural                      toothbrush and cleanser, shaving                        (a) Medical Care. A health services
                                             requirements of § 541.26(b) within                       utensils, etc. You will ordinarily have               staff member will visit you daily to
                                             seven calendar days of your placement.                   an opportunity to shower and shave at                 provide necessary medical care.
                                             Additionally, if you feel at any time                    least three times per week. You will                  Emergency medical care is always
                                             your placement in the SHU as a                           have access to hair care services as                  available.
                                             protection case is unnecessary, you may                  necessary.
                                                                                                                                                              (b) Mental Health Care. After every 30
                                             request a hearing under this section.                       (g) Exercise. You will receive the
                                               (c) Periodic review. If you remain in                                                                        calendar days of continuous placement
                                                                                                      opportunity to exercise outside your                  in either administrative detention or
                                             administrative detention status                          individual quarters at least five hours
                                             following such a hearing, you will be                                                                          disciplinary segregation status, mental
                                                                                                      per week, ordinarily on different days in             health staff will examine you, including
                                             periodically reviewed as an ordinary                     one-hour periods. You can be denied
                                             administrative detention case under                                                                            a personal interview. Emergency mental
                                                                                                      these exercise periods for a week at a                health care is always available.
                                             § 541.26.                                                time by order of the Warden if it is
                                             § 541.29 Staff verification of need for
                                                                                                      determined that your use of exercise                  § 541.33   Release from the SHU.
                                             protection.                                              privileges threatens safety, security, and
                                                                                                                                                              (a) Administrative detention status.
                                                                                                      orderly operation of a correctional
                                               If a staff investigation verifies your                                                                       You will be released from
                                                                                                      facility, or public safety.
                                             need for placement in the SHU as a                                                                             administrative detention status when
                                             protection case, you may remain in the                      (h) Personal property. In either status,
                                                                                                                                                            the reasons for your placement no
                                             SHU or be transferred to another                         your amount of personal property may
                                                                                                                                                            longer exist.
                                             institution where your status as a                       be limited for reasons of fire safety or
                                                                                                      sanitation.                                             (b) Disciplinary segregation status.
                                             protection case may not be necessary, at                                                                       You will be released from disciplinary
                                             the Warden’s discretion.                                    (1) In administrative detention status
                                                                                                      you are ordinarily allowed a reasonable               segregation status after satisfying the
jlentini on DSKJ8SOYB1PROD with RULES




                                             § 541.30 Lack of verification of need for                amount of personal property and                       sanction imposed by the DHO. The SRO
                                             protection.                                              reasonable access to the commissary.                  may release you earlier if it is
                                               If a staff investigation fails to verify                  (2) In disciplinary segregation status             determined you no longer require
                                             your need for placement in the SHU as                    your personal property will be                        disciplinary segregation status.
                                             a protection case, you will be instructed                impounded, with the exception of                      [FR Doc. 2010–30525 Filed 12–7–10; 8:45 am]
                                             to return to the general population. If                  limited reading/writing materials, and                BILLING CODE P




                                        VerDate Mar<15>2010    17:00 Dec 07, 2010   Jkt 223001   PO 00000   Frm 00022   Fmt 4700   Sfmt 9990   E:\FR\FM\08DER1.SGM   08DER1

								
To top