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

whether fails charges paid with respect 

to such a trading practice should be 

sourced under these regulations. 

Effective/Applicability Date 

These regulations apply to qualified 

fails charges paid or accrued on or after 

December 8, 2010. 

Special Analyses 

It has been determined that this 

Treasury decision is not a significant 

regulatory action as defined in 

Executive Order 12866. Therefore, a 

regulatory assessment is not required. It 

has also been determined that section 

553(b) of the Administrative Procedure 

Act (5 U.S.C. chapter 5) does not apply 

to these regulations, and because these 

regulations do not impose a collection 

of information on small entities, the 

provisions of the Regulatory Flexibility 

Act (5 U.S.C. chapter 6) do not apply. 

Pursuant to section 7805(f) of the 

Internal Revenue Code, these temporary 

regulations will be submitted to the 

Chief Counsel for Advocacy of the Small 

Business Administration for comment 

on its impact on small business. 

Drafting Information 

The principal authors of these 

regulations are Sheila Ramaswamy and 

Anthony J. Marra, Office of the 

Associate Chief Counsel (International). 

However, other persons from the Office 

of Associate Chief Counsel 

(International) and the Treasury 

Department have participated in their 

development. 

List of Subjects in 26 CFR Part 1 

Income taxes, Reporting and 

recordkeeping requirements. 

Adoption of Amendments to the 

Regulations 

■ Accordingly, 26 CFR part 1 is 

amended as follows: 

PART 1—INCOME TAXES 

■ Paragraph 1. The authority citation 

for part 1 continues to read in part as 

follows: 

Authority: 26 U.S.C. 863(a) and 7805 

* * * 

■ Par. 2. Section 1.863–10T is added to 

read as follows: 

§ 1.863–10T Source of income from a 

qualified fails charge (temporary). 

(a) In general. Unless paragraph (b) or 

(c) of this section applies, the source of 

income from a qualified fails charge 

shall be determined by reference to the 

residence of the taxpayer as determined 

under section 988(a)(3)(B)(i). 

(b) Qualified business unit exception. 

The source of income from a qualified 

fails charge shall be determined by 

reference to the residence of a qualified 

business unit of a taxpayer if— 

(1) The taxpayer’s residence, 

determined under section 

988(a)(3)(B)(i), is the United States; 

(2) The qualified business unit’s 

residence, determined under section 

988(a)(3)(B)(ii), is outside the United 

States; 

(3) The qualified business unit is 

engaged in the conduct of a trade or 

business in the country where it is a 

resident; and 

(4) The transaction to which the 

qualified fails charge relates is 

attributable to the qualified business 

unit. A transaction will be treated as 

attributable to a qualified business unit 

if it satisfies the principles of § 1.864– 

4(c)(5)(iii) (substituting ‘‘qualified 

business unit’’ for ‘‘U.S. office’’). 

(c) Effectively connected income 

exception. Income from a qualified fails 

charge that arises from a transaction that 

under the principles described in 

§ 1.864–4(c) is effectively connected 

with a United States trade or business 

shall be sourced in the United States 

and the income from the qualified fails 

charge shall be treated as effectively 

connected to the conduct of a United 

States trade or business to the same 

extent as the transaction from which it 

arises. 

(d) Definitions.—(1) Qualified fails 

charge. For purposes of this section, a 

qualified fails charge is a payment that 

(i) Compensates a party to a 

transaction that provides for delivery of 

a Treasury security in exchange for the 

payment of cash (delivery-versuspayment settlement) for another party’s 

failure to deliver the specified Treasury 

security on the settlement date specified 

in the relevant agreement; and 

(ii) Is made pursuant to: 

(A) A trading practice or similar 

guidance approved or adopted by either 

an agency of the United States 

government or the Treasury Market 

Practices Group, or 

(B) Any trading practice, program, 

policy or procedure approved by the 

Commissioner in guidance published in 

the Internal Revenue Bulletin. 

(2) Treasury security. For purposes of 

this section, a Treasury security is any 

bill, note, or other evidence of 

indebtedness issued by the United 

States Treasury Department. 

(e) Effective/applicability date. This 

section applies to qualified fails charges 

paid or accrued on or after December 8, 

2010. 

(f) Expiration date. This section 

expires on December 9, 2013. 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: December 2, 2010. 

Michael Mundaca, 

Assistant Secretary of the Treasury. 

[FR Doc. 2010–30895 Filed 12–7–10; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

Bureau of Prisons 

28 CFR Part 541 

[Docket No. BOP–1118–F] 

RIN 1120–AB18 

Inmate Discipline Program/Special 

Housing Units: Subpart Revision and 

Clarification 

AGENCY: Bureau of Prisons, Justice. 

ACTION: Final rule. 

SUMMARY: In this document, the Bureau 

of Prisons (Bureau) amends its Inmate 

Discipline and Special Housing Unit 

(SHU) regulations. We intend this 

amendment to streamline and clarify 

these regulations, eliminating 

unnecessary text and obsolete language, 

and removing internal agency 

procedures that need not be in 

regulations text. We also make 

substantive changes to our list of 

prohibited acts for which disciplinary 

sanctions may be imposed, and alter the 

list of possible sanctions available to 

allow Discipline Hearing Officers more 

flexibility in adapting the sanction to fit 

the seriousness of the violation. 

DATES: This rule is effective on March 1, 

2011. 

ADDRESSES: Rules Unit, Office of 

General Counsel, Bureau of Prisons, 320 

First Street, NW., Washington, DC 

20534. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Qureshi, Office of General 

Counsel, Bureau of Prisons, phone (202) 

307–2105. 

SUPPLEMENTARY INFORMATION: The 

Bureau amends its inmate discipline 

and special housing unit (SHU) 

regulations (28 CFR part 541, subpart A 

and subpart B) to streamline and clarify 

these regulations, eliminating 

unnecessary text and obsolete language, 

and removing internal agency 

procedures that need not be in 

regulations text. The proposed 

regulation contained a detailed sectionby-section analysis (published on July 


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26, 2005, at 70 FR 43093). This 

regulation finalizes the proposed 

regulation with only minor changes. We 

received only four comments containing 

several similar issues. We address the 

issues raised by the commenters below. 

Comment: It is unlawful to require 

DNA testing while in Bureau custody. 

One commenter, an inmate, stated that 

he has a Court order to submit to a noninvasive DNA test as directed by a 

probation officer upon release, and 

therefore believes it is unlawful to 

‘‘require’’ him to submit to DNA testing 

while in the Bureau’s custody under 

prohibited act code 227 (Refusing to 

participate in a required physical test or 

examination unrelated to testing for 

drug abuse). 

Bureau Response: The high severity 

level prohibited act code for refusing to 

participate in a required physical test or 

examination unrelated to testing for 

drug abuse (e.g., DNA, HIV, 

tuberculosis) is necessary to comply 

with Federal law. On December 19, 

2000, Congress enacted Public Law 106– 

546, commonly referred to as the DNA 

Analysis Backlog Elimination Act of 

2000 (Act). This Act requires the Bureau 

to collect DNA samples from 

individuals convicted of qualifying 

Federal, military, or DC Code offenses. 

The FBI is required to analyze the 

samples and maintain the information 

in the Combined DNA Index System 

(CODIS). Although this commenter and 

other inmates may have court orders 

requiring such testing upon their 

release, these court orders are not 

inconsistent with the Bureau’s authority 

to conduct testing during incarceration. 

Because we are required to do this by 

statute, we need to have the specific 

capability to discipline inmates who 

jeopardize the Bureau’s compliance 

with the statute. 

Comment: Code 296 could result in 

lawsuits for infringement of the 6th 

Amendment right of access to the 

courts. Another inmate complained that 

defective copying machines at her 

institution resulted in staff making 

copies of legal material for inmates on 

a staff copier only at times convenient 

for staff. The inmate then complained 

that she was therefore ‘‘forced’’ to send 

originals to a legal assistant to copy and 

file, violating code 296 (sending 

correspondence to an address with 

directions to have the correspondence 

sent to an unauthorized person). She 

concluded that code 296 should 

therefore exclude legal material. 

Bureau Response: We do not intend to 

impede inmates’ Constitutional right to 

access courts. Code 296 is intended to 

sanction inmate behavior designed to 

circumvent inmate correspondence 

regulations and policy. It will be used 

to deter correspondence with 

unauthorized individuals and to 

prohibit illegal activity. 28 CFR 

540.19(d) also allows for inmates to 

send ‘‘legal correspondence’’ to legal 

assistants. Inmates must clearly mark 

the envelope as ‘‘legal mail.’’ If inmates 

encounter a problem with sending legal 

mail to their attorneys, they should file 

an administrative remedy complaint 

according to procedures in 28 CFR part 

542. 

Comment: Distinction should be 

drawn between violation of 334 

(Conducting a business) and 

management of pre-existing assets by a 

designated representative, which is 

allowed under the regulations. Some 

commenters were concerned that staff 

may not understand this distinction, 

and wanted more details about this 

code. 

Bureau response: In response to this 

commenter, we have amended this code 

to clarify that inmate activities related to 

conducting a business that are 

authorized by staff, such as those the 

commenter refers to, will not violate the 

prohibited act code. We revise this code 

to prohibit only ‘‘Conducting a business; 

conducting or directing an investment 

transaction without staff authorization.’’ 

Also, in corresponding policy 

guidance to staff, the Bureau will ensure 

that staff are aware of the distinction 

between violation of this prohibited act 

code and management of pre-existing 

assets by a designated representative. 

Staff are currently aware that inmates 

are permitted limited opportunities to 

protect personal assets (see 28 CFR 

540.14(d)(4)) or engage in an approved 

special visit for the purpose of 

addressing a business matter (see 28 

CFR 540.45(a)). 

Comment: Codes 199, 299, 399 and 

499 (‘‘Conduct most like’’ codes) are too 

vague. 

Bureau response: The Bureau gives 

guidance to its Discipline Hearing 

Officers (DHOs) that they are to use this 

charge only when another charge of the 

same severity level is not applicable. 

These codes, along with codes 198, 298, 

398 and 498 (Conduct which disrupts or 

interferes with the security or orderly 

running of the institution or the Bureau 

of Prisons most like another prohibited 

act in the same severity level) give the 

Bureau flexibility to address unique 

situations. 

Currently, the DHO or Unit 

Disciplinary Committee (UDC) must 

indicate in its findings a specific finding 

of the severity level of the conduct and 

a comparison to the offense in that 

severity level which the DHO/UDC 

finds is most comparable. Therefore, 

whenever these codes are used, 

reference will be made to another code 

which is most like the inmate’s present 

problematic conduct, making the DHO/ 

UDC finding as specific as possible. 

Also, courts have consistently upheld 

this type of prison regulation, 

particularly where the act committed is 

similar to a specifically defined 

prohibited act. See Landman v. Royster, 

333 F.Supp. 621, 655–56 (E.D.Va.1971) 

(For prisoners, ‘‘the law requires less in 

the way of notice, and places a greater 

burden on the individual to make 

inquiry or ask permission before 

acting.’’); Meyers v. Allderedge, 492 F.2d 

296, 309 (3rd Cir. 1974) (‘‘It is nearly 

impossible for prison authorities to 

anticipate, through a narrowly drawn 

regulation, every conceivable form of 

misconduct which threatens prison 

security.’’); Schenck v. Edwards, 921 F. 

Supp 679 (E.D. Wash 1996) (‘‘One 

cannot realistically expect prison 

officials to make and be bound by an 

exclusive list of every item constituting 

contraband. Prison officials must have 

some flexibility to address situations as 

they arise.’’). See also Coffman v. 

Trickey, 884 F.2d 1057 (8th Cir. 1989), 

in which an inmate was charged with 

violating a prohibition on violating a 

published rule. The court found that 

because prison officials could not point 

to which rule the inmate actually 

violated, there was insufficient notice to 

the inmate of the prohibited act and 

therefore a violation of due process. As 

mentioned above, however, DHOs do 

not use prohibited act codes 199, 299, 

399, or 499 without referring to another 

code which is most like the inmate’s 

present problematic conduct. 

Comment: It is unfair to impose 

monetary fines. One commenter was 

concerned about what happens if a 

monetary fine is not paid. That 

commenter opined that monetary fines 

are discriminatory and arbitrary in that 

inmates don’t have the ability to pay 

and those that do have an advantage. 

Bureau response: We made this 

change to provide DHOs with the 

flexibility to sanction inmates by 

imposing monetary fines as a 

punishment and deterrent to 

committing prohibited acts. 

Additionally, by providing another 

sanctioning option, DHOs are better able 

to tailor the discipline of individual 

inmates in a manner best suited to affect 

behavioral changes. 

We also clarify that the sanctions of 

‘‘make monetary restitution’’ and 

‘‘monetary fine’’ may only be imposed 

by DHOs after providing the inmate 

with due process procedures. DHOs will 

have the benefit of seeing the total 

circumstances and situation of the 


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Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 76265 

inmate, and if, for example, the inmate 

is indigent, the DHO may choose 

instead to impose a different sanction. 

DHOs are trained to sanction effectively 

based on each inmate’s circumstances 

and the punitive value of the sanction 

for that particular inmate. 

If a monetary fine imposed as a 

sanction by a DHO is not paid, the DHO 

will have the authority to order that the 

amount of the fine be ‘‘frozen’’ in that 

inmate’s deposit fund account so that 

the amount of the fine would not be 

available for spending by the inmate. 

Non-payment of a fine is not a 

prohibited act and will not be a factor 

for an inmate’s placement or 

continuation in SHU. 

Comment: Forfeiture of good time is 

unfair. One commenter states that, 

before 1996, there was no forfeiture of 

good time, or good time could be 

recouped. The commenter wrote: ‘‘Is it 

not discriminatory if those inmates who 

were sentenced before 1996 must now 

face additional punishments that were 

not part of the scheme when they were 

originally sentenced?’’ 

Bureau response: The sanction of 

forfeiture of good conduct time 

appeared in the previous regulations. 

We do not intend to alter its application 

through this rulemaking. Under 

previous regulations, which will be 

incorporated into the Bureau’s Inmate 

Discipline policy, an inmate sentenced 

under the Sentencing Reform Act 

provisions of the Comprehensive Crime 

Control Act (committed his or her crime 

on or after November 1, 1987) may not 

receive statutory good time, but is 

eligible to receive 54 days good conduct 

time credit each year (18 U.S.C. 

3624(b)). Once awarded, the credit is 

vested, and may not be disallowed. 

However for crimes committed on or 

after September 13, 1994, and before 

April 26, 1996, credit toward an 

inmate’s service of sentence will not 

vest unless the inmate has earned or is 

making satisfactory progress toward a 

high school diploma or an equivalent 

degree, or has been exempted from 

participation because of a learning 

disability or other status. 

In imposing this sanction, the DHO 

will consider the severity of the 

prohibited act and the suggested 

disallowance guidelines in making a 

determination to disallow good conduct 

time in a non-discriminatory fashion. 

Disallowance of good conduct time is 

not an ‘‘additional punishment.’’ 

Comment: The increased disciplinary 

segregation sanction time is unfair. One 

commenter believed that increasing the 

amount of time an inmate can 

potentially be placed in disciplinary 

segregation status as a sanction has a 

‘‘deleterious effect on inmates and puts 

the inmate in jeopardy of permanent 

psychological damage.’’ The commenter 

recommended that these increases be 

available only for ‘‘new criminal 

behavior and not for incident reports 

that are minor in nature.’’ 

Bureau response: This change allows 

us to more effectively discipline and 

more accurately reflects the serious 

nature of all of the prohibited acts. 

There are several reasons that this time 

frame was chosen for the maximum 

amount of disciplinary segregation: 

Current disciplinary segregation (DS) 

sanctions have been in place since 

January 5, 1988. In the past 16 years, the 

inmate population has increased 

dramatically, most recently to include 

DC Code felony offenders. Likewise, 

because the population has also 

changed dramatically, the nature and 

severity of prohibited acts committed 

has intensified. 

Specifically, the Bureau has seen an 

increase in offenses related to gangrelated activity, firearms, and drugs. 

Also, Federal offenses have expanded to 

include use of firearms, new drugrelated offenses, conspiracies, and 

higher penalties for homicides. 

In addition, because sentence length 

has generally increased, the current 

sanctions of 60–90 days of disciplinary 

segregation accounts for a much smaller 

percentage of the typical sentence. 

Therefore, current DS sanctions no 

longer effectively function as a 

deterrent. We increase this sanction to 

reflect the needs and the nature of the 

changing and expanding inmate 

population. 

Under the current disciplinary 

regulations, approximately 16% of 

inmates committing prohibited acts 

were repeat offenders who were 

sanctioned to the maximum amount of 

disciplinary segregation sanction 

multiple times, resulting in 12 months 

or more of total disciplinary segregation 

time. Again, the current maximum DS 

sanction is not functioning as an 

effective deterrent. Finally, it is 

important to note that this regulation 

increases the maximum amount of the 

disciplinary segregation sanction 

available to DHOs. DHOs will only 

impose the maximum amount of 

disciplinary segregation in the most 

egregious circumstances for the most 

serious offenses. 

Also, with regard to the commenter’s 

concern about the psychological effects 

on inmates placed in SHU, we note that 

§ 541.32 requires health services staff to 

visit inmates in SHU daily to provide 

necessary medical care. That regulation 

also indicates that, after every 30 

calendar days of continuous placement 

in SHU, mental health staff will 

examine the inmate, including a 

personal interview. Emergency medical 

and mental health care is always 

available. 

Comment: Special Housing Unit 

(SHU) conditions are substandard. Two 

commenters complained about SHU 

conditions, and one opined that inmates 

in Administrative Detention (AD) status 

should have the same amenities as those 

in general population status. 

Specifically, the commenter believes 

that ‘‘AD food should be the same as that 

provided in general population,’’ ‘‘AD 

inmates should be allowed the same 

amount of personal property as 

permitted for inmates in general 

population,’’ and ‘‘AD inmates should 

not have telephone calls limited.’’ 

Bureau response: With regard to the 

commenters concerns about substandard conditions in Special Housing 

Units (SHU) for inmates in 

Administrative Detention or 

Disciplinary Segregation status, the 

Bureau’s policies for conditions in SHU 

continue to exist and are applicable 

nationwide to ensure uniformity. 

Also, § 541.31 provides that 

conditions in SHU will ‘‘meet or exceed 

standards for healthy and humane 

treatment,’’ and subsection (d) provides 

that food will be nutritionally adequate. 

The staff-inmate ratio and other unique 

circumstances of each institution may 

render it impractical to have food 

provided to inmates in SHU be exactly 

the same as that provided in general 

population. 

With regard to personal property, 

subsection (h) provides that personal 

property may be limited for reasons of 

fire safety or sanitation, but that inmates 

in AD status will ordinarily be allowed 

a reasonable amount of personal 

property and access to the commissary. 

Inmates in DS status have been placed 

there as a disciplinary sanction, will 

have their personal property 

impounded, with the exception of 

limited reading/writing materials, and 

religious articles, and their commissary 

privileges may be limited. These 

provisions regarding personal property 

are not substantively different from the 

previous regulation or its application. 

Telephone calls will be allowed in 

accordance with 28 CFR part 540, 

subpart I. Inmates in AD status may 

have telephone calls limited by the staffinmate ratio and unique circumstances 

of that institution. For example, staff 

may not be available at all times to 

provide an AD inmate with access to a 

telephone and may, therefore, have to 

schedule times to place calls. However, 

inmates in AD status will have 

telephone privileges consistent with the 


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76266 Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 

available resources and security needs 

of the institution. 

Comment: Inmates should be allowed 

to attend the 3-day review of their 

placement in AD, and staff information 

relevant to the AD placement should be 

presented then. 

Bureau response: Section 541.26 

states that a Segregation Review Officer 

(SRO) will review supporting records 

within three work days of an inmate’s 

placement in administrative detention 

(AD) status. This is a paper-review by 

the SRO, not a hearing that can be 

attended by the inmate. The inmate has 

an opportunity to attend a formal review 

hearing both within seven days of 

placement in AD status and every thirty 

days thereafter. 

Comment: Table 4 (Sanctions) should 

not be eliminated because it provides 

directions for DHOs and without it, 

DHOs will not follow these processes. 

Bureau response: The table describing 

how DHOs are to impose sanctions will 

not be eliminated, but rather moved 

from Federal regulations language to 

Bureau policy implementing text. It will 

continue to exist as instruction to staff 

in the Bureau’s Inmate Discipline 

policy. The Bureau’s policies constitute 

mandatory staff procedures and 

guidance imposed by the Director. 

DHOs also receive extensive training 

and continual guidance regarding 

imposition of sanctions. 

Comment: Possession of cell phones 

should be under Code 297 instead of in 

the greatest severity category, unless the 

cell phone is used for criminal activity. 

Bureau response: The Bureau chooses 

to make possession of a cellular 

telephone or other electronic device a 

Greatest level prohibited act for the 

following reasons: 

Rapid technological advances have 

resulted in smaller cell phones which 

are easier to introduce into Bureau 

facilities. They may be purchased with 

very little accountability at a very low 

cost by those seeking to introduce them 

into Bureau facilities. Also, new 

wireless communications devices are 

being introduced to the market with 

increasing frequency, and are likewise 

small and easy to introduce. This is 

causing an increase in the number of 

electronic devices being introduced into 

Bureau facilities. 

When the Bureau first began 

investigating the potential problem in 

2003, we discovered that during that 

calendar year, institutions reported 

confiscating 270 cellular telephones 

from inmates. At least two inmates 

escaped from minimum security 

facilities while in possession of cellular 

telephones. We therefore increased the 

severity level for possession of a cellular 

telephone or other electronic device to 

reflect the potential seriousness of the 

conduct, which may result in aiding 

escape, continuing criminal activity, 

facilitating terrorism, and a host of other 

potential threats to the safety, security, 

and orderly operation of correctional 

facilities, and for the protection of the 

public. 

Other changes: The Bureau also 

makes the following minor changes to 

the prohibited act codes to amend the 

parenthetical lists of examples of 

contraband often found in inmates’ 

possession: 

Code 331 prohibits possession, 

manufacture, introduction, or loss of a 

non-hazardous tool, equipment, 

supplies, or other non-hazardous 

contraband. Following this prohibited 

act code in the table in § 541.03, there 

is a parenthetical description listing 

examples of non-hazardous contraband. 

We amend this list to include smoking 

apparatus and tobacco in any form 

where prohibited, and unauthorized 

nutritional/dietary supplements. 

28 CFR 551.162(b)(2) indicates that 

Wardens may, with the Regional 

Director’s concurrence, prohibit inmate 

smoking other than for authorized 

religious activities. We therefore make 

this conforming amendment to clarify 

that smoking apparatus and tobacco are 

non-hazardous contraband and are 

prohibited in institutions where 

Wardens have prohibited inmate 

smoking. 

We also include unauthorized 

nutritional/dietary supplements in the 

list of examples of non-hazardous 

contraband for the following reasons: 

The Bureau has been finding inmates in 

possession of various types of herbal/ 

dietary supplement items. However, 

these items do not fall under the same 

Food and Drug Administration (FDA) 

rules and regulations, including quality 

assurance measures, as medications. 

This has resulted in negative health 

outcomes for those taking such herbal/ 

dietary supplements. These 

supplements have not passed through 

the same rigorous trials as FDAapproved medication in regards to 

safety, efficacy, adverse reactions, good 

manufacturing practices, etc. 

The FDA has made several 

announcements regarding the dangerous 

effects of dietary supplements. Some of 

these announcements, which can be 

found at http://www.fda.gov, include 

warnings against ‘‘nicotene water,’’ kava 

associated with severe liver injury, PC/ 

SPES and SPES (which contain the 

harmful compounds warfarin and 

alprazolam), LipoKietix (which causes 

serious liver injuries), nettle (which has 

high lead content), and many others. For 

these reasons, the Bureau has 

determined that such items constitute 

non-hazardous contraband and are 

unauthorized for possession by inmates. 

Code 108 prohibits possession, 

manufacture, introduction, or loss of a 

hazardous tool, and also gives a 

parenthetical list of examples of 

hazardous tools. The list begins with a 

description of hazardous tools: ‘‘tools 

most likely to be used in an escape or 

escape attempt or to serve as weapons 

capable of doing serious bodily harm to 

others.’’ We amend this list to include 

body armor, maps, handmade rope, or 

other escape paraphernalia. This adds 

more specificity to this prohibited act 

code and serves to put inmates on 

greater notice of items considered 

hazardous. 

These are minor amendments to the 

parenthetical lists of examples of 

contraband often found in inmates’ 

possession. The lists of examples are 

intended to be illustrative, not 

exhaustive. 

Executive Order 12866 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review’’, section 1(b), Principles of 

Regulation. The Director, Bureau of 

Prisons has determined that this 

regulation is a ‘‘significant regulatory 

action’’ under Executive Order 12866, 

section 3(f), and accordingly this 

regulation has been reviewed by the 

Office of Management and Budget. 

Executive Order 13132 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. Under Executive 

Order 13132, this regulation does not 

have sufficient federalism implications 

for which we would prepare a 

Federalism Assessment. 

Regulatory Flexibility Act 

The Director of the Bureau of Prisons, 

under the Regulatory Flexibility Act (5 

U.S.C. 605(b)), reviewed this regulation. 

By approving it, the Director certifies 

that it will not have a significant 

economic impact upon a substantial 

number of small entities because: This 

regulation is about the correctional 

management of offenders committed to 

the custody of the Attorney General or 

the Director of the Bureau of Prisons, 

and its economic impact is limited to 

the Bureau’s appropriated funds. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 76267 

Unfunded Mandates Reform Act of 

1995 

This regulation will not cause State, 

local and Tribal governments, or the 

private sector, to spend $100,000,000 or 

more in any one year, and it will not 

significantly or uniquely affect small 

governments. We do not need to take 

action under the Unfunded Mandates 

Reform Act of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This regulation is not a major rule as 

defined by § 804 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996. This regulation will not result in 

an annual effect on the economy of 

$100,000,000 or more; a major increase 

in costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

List of Subjects in 28 CFR Part 541 

Prisoners. 

Harley G. Lappin, 

Director, Bureau of Prisons. 

■ Under rulemaking authority vested in 

the Attorney General in 5 U.S.C. 301; 28 

U.S.C. 509, 510 and delegated to the 

Director, Bureau of Prisons, we amend 

28 CFR part 541 as follows. 

Subchapter C—Institutional Management 

PART 541—INMATE DISCIPLINE AND 

SPECIAL HOUSING UNITS 

■ 1. Revise the authority citation for part 

541 to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 

3622, 3624, 4001, 4042, 4081, 4082 (Repealed 

in part as to offenses committed on or after 

November 1, 1987), 4161–4166 (Repealed as 

to offenses committed on or after November 

1, 1987), 5006–5024 (Repealed October 12, 

1984 as to offenses committed after that 

date), 5039; 28 U.S.C. 509, 510. 

■ 2. Revise Subpart A to Part 541 to read 

as follows: 

Subpart A—Inmate Discipline Program 

Sec. 

541.1 Purpose. 

541.2 Application. 

541.3 Prohibited acts and available 

sanctions. 

541.4 Loss of good conduct sentence credit 

as a mandatory sanction. 

541.5 Discipline process. 

541.6 Mentally ill inmates. 

541.7 Unit Discipline Committee (UDC) 

review. 

541.8 Discipline Hearing Officer (DHO) 

hearing. 

Subpart A—Inmate Discipline Program 

§ 541.1 Purpose. 

This subpart describes the Federal 

Bureau of Prisons’ (Bureau) inmate 

discipline program. This program helps 

ensure the safety, security, and orderly 

operation of correctional facilities, and 

the protection of the public, by allowing 

Bureau staff to impose sanctions on 

inmates who commit prohibited acts. 

Sanctions will not be imposed in a 

capricious or retaliatory manner. The 

Bureau’s inmate discipline program is 

authorized by 18 U.S.C. 4042(a)(3). 

§ 541.2 Application. 

This program applies to sentenced 

and unsentenced inmates in Bureau 

custody. It also applies to sentenced and 

unsentenced inmates designated to any 

prison, institution, or facility in which 

persons are held in custody by direction 

of, or under an agreement with, the 

Bureau of Prisons. 

§ 541.3 Prohibited acts and available 

sanctions. 

(a) Prohibited acts. The list of 

prohibited acts are divided into four 

separate categories based on severity: 

Greatest; High; Moderate; and Low. We 

describe the prohibited acts in Table 1— 

Prohibited Acts and Available 

Sanctions. Aiding, attempting, abetting, 

or making plans to commit any of the 

prohibited acts is treated the same as 

committing the act itself. 

(b) Available sanctions. The list of 

available sanctions for committing 

prohibited acts is listed in Table 1— 

Prohibited Acts and Available 

Sanctions. If you commit repetitive 

prohibited acts, we can impose 

increased sanctions, as listed in Table 

2—Additional Available Sanctions for 

Repeated Prohibited Acts Within the 

Same Severity Level. 

TABLE 1—PROHIBITED ACTS AND AVAILABLE SANCTIONS GREATEST SEVERITY LEVEL PROHIBITED ACTS

100 ........... Killing. 

101 ........... Assaulting any person, or an armed assault on the institution’s secure perimeter (a charge for assaulting any person at this level is 

to be used only when serious physical injury has been attempted or accomplished). 

102 ........... Escape from escort; escape from any secure or non-secure institution, including community confinement; escape from unescorted 

community program or activity; escape from outside a secure institution. 

103 ........... Setting a fire (charged with this act in this category only when found to pose a threat to life or a threat of serious bodily harm or in 

furtherance of a prohibited act of Greatest Severity, e.g., in furtherance of a riot or escape; otherwise the charge is properly classified Code 218, or 329). 

104 ........... Possession, manufacture, or introduction of a gun, firearm, weapon, sharpened instrument, knife, dangerous chemical, explosive, 

ammunition, or any instrument used as a weapon. 

105 ........... Rioting. 

106 ........... Encouraging others to riot. 

107 ........... Taking hostage(s). 

108 ........... Possession, manufacture, introduction, or loss of a hazardous tool (tools most likely to be used in an escape or escape attempt or 

to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g., hack-saw blade, body armor, maps, handmade rope, or other escape paraphernalia, portable telephone, pager, or other 

electronic device). 

109 ........... (Not to be used). 

110 ........... Refusing to provide a urine sample; refusing to breathe into a Breathalyzer; refusing to take part in other drug-abuse testing. 

111 ........... Introduction or making of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the medical staff. 

112 ........... Use of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the medical staff. 

113 ........... Possession of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the 

medical staff. 

114 ........... Sexual assault of any person, involving non-consensual touching by force or threat of force. 

115 ........... Destroying and/or disposing of any item during a search or attempt to search. 

196 ........... Use of the mail for an illegal purpose or to commit or further a Greatest category prohibited act. 

197 ........... Use of the telephone for an illegal purpose or to commit or further a Greatest category prohibited act. 


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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 offending conduct must be charged as ‘‘most like’’ one of the listed Greatest severity prohibited acts. 

Available Sanctions for Greatest Severity Level Prohibited Acts 

A. ............. Recommend parole date rescission or retardation. 

B. ............. Forfeit and/or withhold earned statutory good time or non-vested good conduct time (up to 100%) and/or terminate or disallow extra 

good time (an extra good time or good conduct time sanction may not be suspended). 

B.1. .......... Disallow ordinarily between 50% and 75% (27–41 days) of good conduct time credit available for year (a good conduct time sanction may not be suspended). 

C. ............. Disciplinary segregation (up to 12 months). 

D. ............. Make monetary restitution. 

E. ............. Monetary fine. 

F. ............. Loss of privileges (e.g., visiting, telephone, commissary, movies, recreation). 

G. ............. Change housing (quarters). 

H. ............. Remove from program and/or group activity. 

I. ............... Loss of job. 

J. .............. Impound inmate’s personal property. 

K. ............. Confiscate contraband. 

L. .............. Restrict to quarters. 

M. ............. Extra duty. 

High Severity Level Prohibited Acts 

200 ........... Escape from a work detail, non-secure institution, or other non-secure confinement, including community confinement, with subsequent voluntary return to Bureau of Prisons custody within four hours. 

201 ........... Fighting with another person. 

202 ........... (Not to be used). 

203 ........... Threatening another with bodily harm or any other offense. 

204 ........... Extortion; blackmail; protection; demanding or receiving money or anything of value in return for protection against others, to avoid 

bodily harm, or under threat of informing. 

205 ........... Engaging in sexual acts. 

206 ........... Making sexual proposals or threats to another. 

207 ........... Wearing a disguise or a mask. 

208 ........... Possession of any unauthorized locking device, or lock pick, or tampering with or blocking any lock device (includes keys), or destroying, altering, interfering with, improperly using, or damaging any security device, mechanism, or procedure. 

209 ........... Adulteration of any food or drink. 

210 ........... (Not to be used). 

211 ........... Possessing any officer’s or staff clothing. 

212 ........... Engaging in or encouraging a group demonstration. 

213 ........... Encouraging others to refuse to work, or to participate in a work stoppage. 

214 ........... (Not to be used). 

215 ........... (Not to be used). 

216 ........... Giving or offering an official or staff member a bribe, or anything of value. 

217 ........... Giving money to, or receiving money from, any person for the purpose of introducing contraband or any other illegal or prohibited 

purpose. 

218 ........... Destroying, altering, or damaging government property, or the property of another person, having a value in excess of $100.00, or 

destroying, altering, damaging life-safety devices (e.g., fire alarm) regardless of financial value. 

219 ........... Stealing; theft (including data obtained through the unauthorized use of a communications device, or through unauthorized access 

to disks, tapes, or computer printouts or other automated equipment on which data is stored). 

220 ........... Demonstrating, practicing, or using martial arts, boxing (except for use of a punching bag), wrestling, or other forms of physical encounter, or military exercises or drill (except for drill authorized by staff). 

221 ........... Being in an unauthorized area with a person of the opposite sex without staff permission. 

222 ........... (Not to be used). 

223 ........... (Not to be used). 

224 ........... Assaulting any person (a charge at this level is used when less serious physical injury or contact has been attempted or accomplished by an inmate). 

225 ........... Stalking another person through repeated behavior which harasses, alarms, or annoys the person, after having been previously 

warned to stop such conduct. 

226 ........... Possession of stolen property. 

227 ........... Refusing to participate in a required physical test or examination unrelated to testing for drug abuse (e.g., DNA, HIV, tuberculosis). 

228 ........... Tattooing or self-mutilation. 

229 ........... Sexual assault of any person, involving non-consensual touching without force or threat of force. 

296 ........... Use of the mail for abuses other than criminal activity which circumvent mail monitoring procedures (e.g., use of the mail to commit 

or further a High category prohibited act, special mail abuse; writing letters in code; directing others to send, sending, or receiving a letter or mail through unauthorized means; sending mail for other inmates without authorization; sending correspondence to 

a specific address with directions or intent to have the correspondence sent to an unauthorized person; and using a fictitious return address in an attempt to send or receive unauthorized correspondence). 

297 ........... Use of the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone 

use, content of the call, or the number called; or to commit or further a High category prohibited act. 

298 ........... Interfering with a staff member in the performance of duties most like another High severity prohibited act. This charge is to be 

used only when another charge of High severity is not accurate. The offending conduct must be charged as ‘‘most like’’ one of 

the listed High severity prohibited acts. 


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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 sanction may not be suspended). 

C. ............. Disciplinary segregation (up to 6 months). 

D. ............. Make monetary restitution. 

E. ............. Monetary fine. 

F. ............. Loss of privileges (e.g., visiting, telephone, commissary, movies, recreation). 

G. ............. Change housing (quarters). 

H. ............. Remove from program and/or group activity. 

I. ............... Loss of job. 

J. .............. Impound inmate’s personal property. 

K. ............. Confiscate contraband. 

L. .............. Restrict to quarters. 

M. ............. Extra duty. 

Moderate Severity Level Prohibited Acts 

300 ........... Indecent Exposure. 

301 ........... (Not to be used). 

302 ........... Misuse of authorized medication. 

303 ........... Possession of money or currency, unless specifically authorized, or in excess of the amount authorized. 

304 ........... Loaning of property or anything of value for profit or increased return. 

305 ........... Possession of anything not authorized for retention or receipt by the inmate, and not issued to him through regular channels. 

306 ........... Refusing to work or to accept a program assignment. 

307 ........... Refusing to obey an order of any staff member (may be categorized and charged in terms of greater severity, according to the nature of the order being disobeyed, e.g., failure to obey an order which furthers a riot would be charged as 105, Rioting; refusing 

to obey an order which furthers a fight would be charged as 201, Fighting; refusing to provide a urine sample when ordered as 

part of a drug-abuse test would be charged as 110). 

308 ........... Violating a condition of a furlough. 

309 ........... Violating a condition of a community program. 

310 ........... Unexcused absence from work or any program assignment. 

311 ........... Failing to perform work as instructed by the supervisor. 

312 ........... Insolence towards a staff member. 

313 ........... Lying or providing a false statement to a staff member. 

314 ........... Counterfeiting, forging, or unauthorized reproduction of any document, article of identification, money, security, or official paper 

(may be categorized in terms of greater severity according to the nature of the item being reproduced, e.g., counterfeiting release 

papers to effect escape, Code 102). 

315 ........... Participating in an unauthorized meeting or gathering. 

316 ........... Being in an unauthorized area without staff authorization. 

317 ........... Failure to follow safety or sanitation regulations (including safety regulations, chemical instructions, tools, MSDS sheets, OSHA 

standards). 

318 ........... Using any equipment or machinery without staff authorization. 

319 ........... Using any equipment or machinery contrary to instructions or posted safety standards. 

320 ........... Failing to stand count. 

321 ........... Interfering with the taking of count. 

322 ........... (Not to be used). 

323 ........... (Not to be used). 

324 ........... Gambling. 

325 ........... Preparing or conducting a gambling pool. 

326 ........... Possession of gambling paraphernalia. 

327 ........... Unauthorized contacts with the public. 

328 ........... Giving money or anything of value to, or accepting money or anything of value from, another inmate or any other person without 

staff authorization. 

329 ........... Destroying, altering, or damaging government property, or the property of another person, having a value of $100.00 or less. 

330 ........... Being unsanitary or untidy; failing to keep one’s person or quarters in accordance with posted standards. 

331 ........... Possession, manufacture, introduction, or loss of a non-hazardous tool, equipment, supplies, or other non-hazardous contraband 

(tools not likely to be used in an escape or escape attempt, or to serve as a weapon capable of doing serious bodily harm to others, or not hazardous to institutional security or personal safety) (other non-hazardous contraband includes such items as food, 

cosmetics, cleaning supplies, smoking apparatus and tobacco in any form where prohibited, and unauthorized nutritional/dietary 

supplements). 

332 ........... Smoking where prohibited. 

333 ........... Fraudulent or deceptive completion of a skills test (e.g., cheating on a GED, or other educational or vocational skills test). 

334 ........... Conducting a business; conducting or directing an investment transaction without staff authorization. 

335 ........... Communicating gang affiliation; participating in gang related activities; possession of paraphernalia indicating gang affiliation. 

336 ........... Circulating a petition. 

396 ........... Use of the mail for abuses other than criminal activity which do not circumvent mail monitoring; or use of the mail to commit or further a Moderate category prohibited act. 

397 ........... Use of the telephone for abuses other than illegal activity which do not circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a Moderate category prohibited act. 


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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

Prohibited act severity level 

Time period for 

prior offense 

(same code) 

Frequency of 

repeated offense Additional available sanctions 

Low Severity (400 level) ......................... 6 months ............... 2nd offense ........... 1. Disciplinary segregation (up to 1 month). 

2. Forfeit earned SGT or non-vested GCT up to 10% or 

up to 15 days, whichever is less, and/or terminate or 

disallow extra good time (EGT) (an EGT sanction may 

not be suspended). 

3rd or more offense Any available Moderate severity level sanction (300 series). 

Moderate Severity (300 level) ................ 12 months ............. 2nd offense ........... 1. Disciplinary segregation (up to 6 months). 


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TABLE 2—ADDITIONAL AVAILABLE SANCTIONS FOR REPEATED PROHIBITED ACTS WITHIN THE SAME SEVERITY LEVEL— 

Continued 

Prohibited act severity level 

Time period for 

prior offense 

(same code) 

Frequency of 

repeated offense Additional available sanctions 

2. Forfeit earned SGT or non-vested GCT up to 371⁄2% or 

up to 45 days, whichever is less, and/or terminate or 

disallow EGT (an EGT sanction may not be suspended). 

3rd or more offense. Any available High severity level sanction (200 series). 

High Severity (200 level) ........................ 18 months ............. 2nd offense ........... 1. Disciplinary segregation (up to 12 months). 

2. Forfeit earned SGT or non-vested GCT up to 75% or 

up to 90 days, whichever is less, and/or terminate or 

disallow EGT (an EGT sanction may not be suspended). 

3rd or more offense Any available Greatest severity level sanction (100 series). 

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

§ 541.4 Loss of good conduct sentence 

credit as a mandatory sanction. 

(a) You will lose good conduct 

sentence credit as a mandatory 

disciplinary sanction if you are in one 

of the following two groups: 

(1) VCCLEA-violent inmates. The date 

of your U.S. Code offense was on or 

after September 13, 1994, but before 

April 26, 1996, and you committed a 

‘‘crime of violence’’ as defined by the 

Violent Crime Control and Law 

Enforcement Act of 1994 (VCCLEA); or 

(2) PLRA inmates and DC Code 

offenders. The date of your U.S. Code 

offense was on or after April 26, 1996, 

and, therefore, under the Prison 

Litigation Reform Act (PLRA), or the 

date of your District of Columbia (DC) 

Code offense was on or after August 5, 

2000. 

(b) If you are an inmate in one of the 

above groups and commit a prohibited 

act, you will lose good conduct sentence 

credit as a mandatory disciplinary 

sanction. The amount of good conduct 

sentence credit you will lose depends 

on the severity level of the prohibited 

act(s) committed, as follows: 

(1) Greatest Severity Level Offenses. 

You will lose at least 41 days, or 75% 

of available credit if less than 54 days 

are available for the prorated period, for 

each act committed. 

(2) High Severity Level Offenses. You 

will lose at least 27 days, or 50% of 

available credit if less than 54 days are 

available for the prorated period, for 

each act committed. 

(3) Moderate Severity Level Offenses. 

You will lose at least 14 days, or 25% 

of available credit if less than 54 days 

are available for the prorated period, 

after committing two or more Moderate 

severity acts during the current year of 

your good conduct sentence credit 

availability. 

(4) Low Severity Level Offenses. You 

will lose at least 7 days, or 12.5% of 

available credit if less than 54 days are 

available for the prorated period, after 

committing three or more Low severity 

acts during the current year of your 

good conduct sentence credit 

availability. 

§ 541.5 Discipline process. 

(a) Incident report. The discipline 

process starts when staff witness or 

reasonably believe that you committed a 

prohibited act. A staff member will 

issue you an incident report describing 

the incident and the prohibited act(s) 

you are charged with committing. You 

will ordinarily receive the incident 

report within 24 hours of staff becoming 

aware of your involvement in the 

incident. 

(b) Investigation. After you receive an 

incident report, a Bureau staff member 

will investigate it. 

(1) Information: The investigator will 

specifically inform you: 

(A) of the charge(s) against you; and 

(B) that you may remain silent at all 

stages of the discipline process, but that 

your silence may be used to draw an 

adverse inference against you at any 

stage of the process. Your silence alone, 

however, cannot be the basis for finding 

you committed the prohibited act(s). 

(2) Statement: When the investigator 

asks for your statement, you may give an 

explanation of the incident, request any 

witnesses be interviewed, or request 

that other evidence be obtained and 

reviewed. However, the staff 

investigation of the incident report may 

be suspended before requesting your 

statement if it is being investigated for 

possible criminal prosecution. 

(3) Informally resolving the incident 

report. The incident report may be 

informally resolved at any stage of the 

disciplinary process, except for 

prohibited acts in the Greatest and High 

severity levels, or as otherwise required 

by law or these regulations. If the 

incident report is informally resolved, it 

will be removed from your records. 

§ 541.6 Mentally ill inmates. 

If it appears you are mentally ill at 

any stage of the discipline process, you 

will be examined by mental health staff. 

(a) Competency to Participate in 

Disciplinary Proceedings. If evidence 

indicates that you cannot understand 

the nature of the disciplinary 

proceedings, or cannot help in your own 

defense, disciplinary proceedings may 

be postponed until you are competent to 

participate. The Unit Disciplinary 

Committee or Discipline Hearing Officer 

will make this decision based on 

evidence, including evidence presented 

by mental health staff. 

(b) Responsibility for Conduct. You 

will not be disciplined for conduct 

committed when, as the result of a 

severe mental disease or defect, you 

were unable to appreciate the nature 

and quality, or wrongfulness of the act. 

The UDC or DHO will make this 

decision based on evidence, including 

evidence presented by mental health 

staff. 

§ 541.7 Unit Discipline Committee (UDC) 

review of the incident report. 

A Unit Discipline Committee (UDC) 

will review the incident report once the 

staff investigation is complete. The 

UDC’s review involves the following: 

(a) Available dispositions. The UDC 

will make one of the following decisions 

after reviewing the incident report: 


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76272 Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 

(1) You committed the prohibited 

act(s) charged, and/or a similar 

prohibited act(s) as described in the 

incident report; 

(2) You did not commit the prohibited 

act(s) charged; or 

(3) The incident report will be 

referred to the Discipline Hearing 

Officer (DHO) for further review, based 

on the seriousness of the prohibited 

act(s) charged. 

(4) If you are charged with a Greatest 

or High severity prohibited act, or are an 

inmate covered by § 541.04, the UDC 

will automatically refer the incident 

report to the DHO for further review. 

(b) UDC members. The UDC 

ordinarily consists of two or more staff. 

UDC members will not be victims, 

witnesses, investigators, or otherwise 

significantly involved in the incident. 

(c) Timing. The UDC will ordinarily 

review the incident report within five 

work days after it is issued, not counting 

the day it was issued, weekends, and 

holidays. UDC review of the incident 

report may also be suspended if it is 

being investigated for possible criminal 

prosecution. 

(d) Inmate appearance. You are 

permitted to appear before the UDC 

during its review of the incident report, 

except during UDC deliberations or 

when your presence would jeopardize 

institution security, at the UDC’s 

discretion. Also: 

(1) You may appear either in person 

or electronically (for example, by video 

or telephone conferencing) at the UDC’s 

discretion. 

(2) You may waive your appearance 

before the UDC. If you waive your 

appearance, the UDC will review the 

incident report in your absence. 

(3) If you escape or are otherwise 

absent from custody, the UDC will 

conduct a review in your absence at the 

institution where you were last 

confined. 

(e) Evidence. You are entitled to make 

a statement and present documentary 

evidence to the UDC on your own 

behalf. The UDC will consider all 

evidence presented during its review. 

The UDC’s decision will be based on at 

least some facts and, if there is 

conflicting evidence, on the greater 

weight of the evidence. 

(f) Sanctions. If you committed a 

prohibited act(s), the UDC can impose 

any of the available sanctions listed in 

Tables 1 and 2, except loss of good 

conduct sentence credit, disciplinary 

segregation, or monetary fines. 

(g) Referral to the DHO. If the UDC 

refers the incident report to the DHO for 

further review, the UDC will advise you 

of your rights at the upcoming DHO 

hearing, as detailed in § 541.08. 

(h) Written report. You will receive a 

written copy of the UDC’s decision 

following its review of the incident 

report. 

(i) Appeals. You may appeal the 

UDC’s action(s) through the 

Administrative Remedy Program, 28 

CFR part 542, subpart B. 

§ 541.8 Discipline Hearing Officer (DHO) 

hearing. 

The Discipline Hearing Officer (DHO) 

will only conduct a hearing on the 

incident report if referred by the UDC. 

The DHO’s hearing involves the 

following: 

(a) Available dispositions. The DHO 

will make one of the following decisions 

after a hearing on the incident report: 

(1) You committed the prohibited 

act(s) charged, and/or a similar 

prohibited act(s) as described in the 

incident report; 

(2) You did not commit the prohibited 

act(s) charged; or 

(3) The incident report will be 

referred back for further investigation, 

review, and disposition. 

(b) Discipline Hearing Officer. The 

DHO will be an impartial decision 

maker who was not a victim, witness, 

investigator, or otherwise significantly 

involved in the incident. 

(c) Timing. You will receive written 

notice of the charge(s) against you at 

least 24 hours before the DHO’s hearing. 

You may waive this requirement, in 

which case the DHO’s hearing can be 

conducted sooner. 

(d) Staff Representative. You are 

entitled to have a staff representative 

during the DHO hearing process as 

follows: 

(1) How to get a staff representative. 

You may request the staff representative 

of your choice, so long as that person 

was not a victim, witness, investigator, 

or otherwise significantly involved in 

the incident. If your request(s) cannot be 

fulfilled, and you still want a staff 

representative, the Warden will appoint 

one. The Warden will also appoint a 

staff representative if it appears you are 

unable to adequately represent yourself 

before the DHO, for example, if you are 

illiterate or have difficulty 

understanding the charges against you. 

(2) How the staff representative will 

help you. Prior to the DHO’s hearing, 

the staff representative will be available 

to help you understand the incident 

report charges and potential 

consequences. The staff representative 

may also assist you by speaking with 

and scheduling witnesses, obtaining 

written statements, and otherwise 

helping you prepare evidence for 

presentation at the DHO’s hearing. 

During the DHO’s hearing, you are 

entitled to have the staff representative 

appear and assist you in understanding 

the proceedings. The staff representative 

can also assist you in presenting 

evidence during the DHO’s hearing. 

(3) How the staff representative may 

appear. Your staff representative may 

appear either in person or electronically 

(for example, by video or telephone 

conferencing) at the DHO’s discretion. If 

your staff representative is not available 

for the scheduled hearing, you may 

either select another staff representative, 

request the hearing be postponed for a 

reasonable amount of time until your 

staff representative can appear, or 

proceed without a staff representative. 

(e) Inmate appearance. You are 

permitted to appear before the DHO 

during the hearing on the incident 

report as follows: 

(1) You may appear either in person 

or electronically (for example, by video 

or telephone conferencing), at the 

DHO’s discretion. 

(2) Your appearance may be 

prohibited during DHO deliberations or 

when your presence would jeopardize 

institution security, at the DHO’s 

discretion. 

(3) You may waive your appearance 

before the DHO. If you waive your 

appearance, the DHO hearing will be 

conducted in your absence. 

(4) If you escape or are otherwise 

absent from custody, the DHO will 

conduct a hearing in your absence at the 

institution where you were last 

confined. 

(f) Evidence and witnesses. You are 

entitled to make a statement and present 

documentary evidence to the DHO on 

your own behalf. The DHO will 

consider all evidence presented during 

the hearing. The DHO’s decision will be 

based on at least some facts and, if there 

is conflicting evidence, on the greater 

weight of the evidence. Witnesses may 

appear at the DHO’s hearing as follows: 

(1) Witnesses may appear before the 

DHO either in person or electronically 

(for example, by video or telephone 

conferencing) at the DHO’s discretion. 

(2) The DHO will call witnesses who 

have information directly relevant to the 

charge(s) and who are reasonably 

available. However, the DHO need not 

call witnesses adverse to you if their 

testimony is adequately summarized in 

the incident report or other 

investigation materials. 

(3) You or your staff representative 

may request witnesses appear at the 

hearing to testify on your behalf. Your 

requested witnesses may not appear if, 

in the DHO’s discretion, they are not 

reasonably available, their presence at 

the hearing would jeopardize institution 


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Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 76273 

security, or they would present 

repetitive evidence. 

(4) If your requested witnesses are 

unavailable to appear, written 

statements can be requested by either 

the DHO or staff representative. The 

written statements can then be 

considered during the DHO’s hearing. 

(5) Only the DHO may directly 

question witnesses at the DHO’s 

hearing. Any questions by you or your 

staff representative must be submitted to 

the DHO, who will present the question 

to the witness in his/her discretion. 

(6) The DHO may consider evidence 

provided by a confidential informant 

(CI) that the DHO finds reliable. You 

will not be informed of the CI’s identity. 

You will be informed of the CI’s 

testimony to the extent it will not 

jeopardize institution security, at the 

DHO’s discretion. 

(g) Sanctions. If you committed a 

prohibited act(s), the DHO can impose 

any of the available sanctions listed in 

Tables 1 and 2. 

(h) Written Report. You will receive a 

written copy of the DHO’s decision 

following the hearing. The DHO is not 

required to prepare a verbatim record of 

the hearing. The DHO’s written report 

will document the following: 

(1) Whether you were advised of your 

rights during the DHO process; 

(2) The evidence relied on by the 

DHO; 

(3) The DHO’s decision; 

(4) The sanction imposed by the DHO; 

and 

(5) The reason(s) for the sanction(s) 

imposed. 

(i) Appeals. You may appeal the 

DHO’s action(s) through the 

Administrative Remedy Program, 28 

CFR part 542, subpart B. 

■ 3. Revise subpart B to read as follows: 

Subpart B—Special Housing Units 

Sec. 

541.20 Purpose. 

541.21 Special Housing Units (SHUs). 

541.22 Status when placed in the SHU. 

541.23 Administrative detention status. 

541.24 Disciplinary segregation status. 

541.25 Notice received when placed in the 

SHU. 

541.26 Review of placement in the SHU. 

541.27 Protection case—placement in 

Administrative Detention Status. 

541.28 Protection case-review of placement 

in the SHU. 

541.29 Staff verification of need for 

protection. 

541.30 Lack of verification of need for 

protection. 

541.31 Conditions of confinement in the 

SHU. 

541.32 Medical and mental health care in 

the SHU. 

541.33 Release from the SHU. 

Subpart B—Special Housing Units 

§ 541.20 Purpose. 

This subpart describes the Federal 

Bureau of Prisons’ (Bureau) operation of 

special housing units (SHU) at Bureau 

institutions. The Bureau’s operation of 

SHUs is authorized by 18 U.S.C. 

4042(a)(2) and (3). 

§ 541.21 Special Housing Units (SHUs). 

Special Housing Units (SHUs) are 

housing units in Bureau institutions 

where inmates are securely separated 

from the general inmate population, and 

may be housed either alone or with 

other inmates. Special housing units 

help ensure the safety, security, and 

orderly operation of correctional 

facilities, and protect the public, by 

providing alternative housing 

assignments for inmates removed from 

the general population. 

§ 541.22 Status when placed in the SHU. 

When placed in the SHU, you are 

either in administrative detention status 

or disciplinary segregation status. 

(a) Administrative detention status. 

Administrative detention status is an 

administrative status which removes 

you from the general population when 

necessary to ensure the safety, security, 

and orderly operation of correctional 

facilities, or protect the public. 

Administrative detention status is nonpunitive, and can occur for a variety of 

reasons. 

(b) Disciplinary segregation status. 

Disciplinary segregation status is a 

punitive status imposed only by a 

Discipline Hearing Officer (DHO) as a 

sanction for committing a prohibited 

act(s). 

§ 541.23 Administrative detention status. 

You may be placed in administrative 

detention status for the following 

reasons: 

(a) Pending Classification or 

Reclassification. You are a new 

commitment pending classification or 

under review for Reclassification. 

(b) Holdover Status. You are in 

holdover status during transfer to a 

designated institution or other 

destination. 

(c) Removal from general population. 

Your presence in the general population 

poses a threat to life, property, self, staff, 

other inmates, the public, or to the 

security or orderly running of the 

institution and: 

(1) Investigation. You are under 

investigation or awaiting a hearing for 

possibly violating a Bureau regulation or 

criminal law; 

(2) Transfer. You are pending transfer 

to another institution or location; 

(3) Protection cases. You requested, or 

staff determined you need, 

administrative detention status for your 

own protection. 

(4) Post-disciplinary detention. You 

are ending confinement in disciplinary 

segregation status, and your return to 

the general population would threaten 

the safety, security, and orderly 

operation of a correctional facility, or 

public safety. 

§ 541.24 Disciplinary segregation status. 

You may be placed in disciplinary 

segregation status only by the DHO as a 

disciplinary sanction. 

§ 541.25 Notice received when placed in 

the SHU. 

You will be notified of the reason(s) 

you are placed in the SHU as follows: 

(a) Administrative detention status. 

When placed in administrative 

detention status, you will receive a copy 

of the administrative detention order, 

ordinarily within 24 hours, detailing the 

reason(s) for your placement. However, 

when placed in administrative 

detention status pending classification 

or while in holdover status, you will not 

receive an administrative detention 

order. 

(b) Disciplinary segregation status. 

When you are to be placed in 

disciplinary segregation status as a 

sanction for violating Bureau 

regulations, you will be informed by the 

DHO at the end of your discipline 

hearing. 

§ 541.26 Review of placement in the SHU. 

Your placement in the SHU will be 

reviewed by the Segregation Review 

Official (SRO) as follows: 

(a) Three day review. Within three 

work days of your placement in 

administrative detention status, not 

counting the day you were admitted, 

weekends, and holidays, the SRO will 

review the supporting records. If you are 

in disciplinary segregation status, this 

review will not occur. 

(b) Seven day reviews. Within seven 

continuous calendar days of your 

placement in either administrative 

detention or disciplinary segregation 

status, the SRO will formally review 

your status at a hearing you can attend. 

Subsequent reviews of your records will 

be performed in your absence by the 

SRO every seven continuous calendar 

days thereafter. 

(c) Thirty day reviews. After every 30 

calendar days of continuous placement 

in either administrative detention or 

disciplinary segregation status, the SRO 

will formally review your status at a 

hearing you can attend. 

(d) Administrative remedy program. 

You can submit a formal grievance 


jlentini on DSKJ8SOYB1PROD with RULES
76274 Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Rules and Regulations 

challenging your placement in the SHU 

through the Administrative Remedy 

Program, 28 CFR part 542, subpart B. 

§ 541.27 Protection case—placement in 

Administrative Detention status. 

You may be placed in administrative 

detention status as a protection case in 

the following circumstances. 

(a) Victim of inmate assault or threats. 

You were the victim of an inmate 

assault, or are being threatened by other 

inmates, including threats of harm if 

you do not act in a certain way, for 

example, threats of harm unless you 

engage in sexual activity. 

(b) Inmate informant. Your safety is 

threatened because you provided, or are 

perceived as having provided, 

information to staff or law enforcement 

authorities regarding other inmates or 

persons in the community. 

(c) Inmate refusal to enter general 

population. You refuse to enter the 

general population because of alleged 

pressures or threats from unidentified 

inmates, or for no expressed reason. 

(d) Staff concern. Based on evidence, 

staff believe your safety may be 

seriously jeopardized by placement in 

the general population. 

§ 541.28 Protection case—review of 

placement in the SHU. 

(a) Staff investigation. Whenever you 

are placed in the SHU as a protection 

case, whether requested by you or staff, 

an investigation will occur to verify the 

reasons for your placement. 

(b) Hearing. You will receive a 

hearing according to the procedural 

requirements of § 541.26(b) within 

seven calendar days of your placement. 

Additionally, if you feel at any time 

your placement in the SHU as a 

protection case is unnecessary, you may 

request a hearing under this section. 

(c) Periodic review. If you remain in 

administrative detention status 

following such a hearing, you will be 

periodically reviewed as an ordinary 

administrative detention case under 

§ 541.26. 

§ 541.29 Staff verification of need for 

protection. 

If a staff investigation verifies your 

need for placement in the SHU as a 

protection case, you may remain in the 

SHU or be transferred to another 

institution where your status as a 

protection case may not be necessary, at 

the Warden’s discretion. 

§ 541.30 Lack of verification of need for 

protection. 

If a staff investigation fails to verify 

your need for placement in the SHU as 

a protection case, you will be instructed 

to return to the general population. If 

you refuse to return to the general 

population under these circumstances, 

you may be subject to disciplinary 

action. 

§ 541.31 Conditions of confinement in the 

SHU. 

Your living conditions in the SHU 

will meet or exceed standards for 

healthy and humane treatment, 

including, but not limited to, the 

following specific conditions: 

(a) Environment. Your living quarters 

will be well-ventilated, adequately 

lighted, appropriately heated, and 

maintained in a sanitary condition. 

(b) Cell Occupancy. Your living 

quarters will ordinarily house only the 

amount of occupants for which it is 

designed. The Warden, however, may 

authorize more occupants so long as 

adequate standards can be maintained. 

(c) Clothing. You will receive 

adequate institution clothing, including 

footwear, while housed in the SHU. You 

will be provided necessary 

opportunities to exchange clothing and/ 

or have it washed. 

(d) Bedding. You will receive a 

mattress, blankets, a pillow, and linens 

for sleeping. You will receive necessary 

opportunities to exchange linens. 

(e) Food. You will receive 

nutritionally adequate meals. 

(f) Personal hygiene. You will have 

access to a wash basin and toilet. You 

will receive personal items necessary to 

maintain an acceptable level of personal 

hygiene, for example, toilet tissue, soap, 

toothbrush and cleanser, shaving 

utensils, etc. You will ordinarily have 

an opportunity to shower and shave at 

least three times per week. You will 

have access to hair care services as 

necessary. 

(g) Exercise. You will receive the 

opportunity to exercise outside your 

individual quarters at least five hours 

per week, ordinarily on different days in 

one-hour periods. You can be denied 

these exercise periods for a week at a 

time by order of the Warden if it is 

determined that your use of exercise 

privileges threatens safety, security, and 

orderly operation of a correctional 

facility, or public safety. 

(h) Personal property. In either status, 

your amount of personal property may 

be limited for reasons of fire safety or 

sanitation. 

(1) In administrative detention status 

you are ordinarily allowed a reasonable 

amount of personal property and 

reasonable access to the commissary. 

(2) In disciplinary segregation status 

your personal property will be 

impounded, with the exception of 

limited reading/writing materials, and 

religious articles. Also, your 

commissary privileges may be limited. 

(i) Correspondence. You will receive 

correspondence privileges according to 

part 540, subpart B. 

(j) Telephone. You will receive 

telephone privileges according to part 

540, subpart I. 

(k) Visiting. You will receive visiting 

privileges according to part 540, 

subpart D. 

(l) Legal Activities. You will receive 

an opportunity to perform personal legal 

activities according to part 543, 

subpart B. 

(m) Staff monitoring. You will be 

monitored by staff assigned to the SHU, 

including program and unit team staff. 

(n) Programming Activities. In 

administrative detention status, you will 

have access to programming activities to 

the extent safety, security, orderly 

operation of a correctional facility, or 

public safety are not jeopardized. In 

disciplinary segregation status, your 

participation in programming activities, 

e.g., educational programs, may be 

suspended. 

(o) Administrative remedy program. 

You can submit a formal grievance 

challenging any aspect of your 

confinement in the SHU through the 

Administrative Remedy Program, 28 

CFR part 542, subpart B. 

§ 541.32 Medical and mental health care in 

the SHU. 

(a) Medical Care. A health services 

staff member will visit you daily to 

provide necessary medical care. 

Emergency medical care is always 

available. 

(b) Mental Health Care. After every 30 

calendar days of continuous placement 

in either administrative detention or 

disciplinary segregation status, mental 

health staff will examine you, including 

a personal interview. Emergency mental 

health care is always available. 

§ 541.33 Release from the SHU. 

(a) Administrative detention status. 

You will be released from 

administrative detention status when 

the reasons for your placement no 

longer exist. 

(b) Disciplinary segregation status. 

You will be released from disciplinary 

segregation status after satisfying the 

sanction imposed by the DHO. The SRO 

may release you earlier if it is 

determined you no longer require 

disciplinary segregation status. 

[FR Doc. 2010–30525 Filed 12–7–10; 8:45 am] 

BILLING CODE P 


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