[Federal Register Volume 61, Number 216 (Wednesday, November 6, 1996)]
[Rules and Regulations]
[Pages 57568-57569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28565]



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Part III





Department of Justice





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Bureau of Prisons



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28 CFR Part 540



Incoming Publications: Nudity and Sexually Explicit Material or 
Information; Interim Rule

  Federal Register / Vol. 61, No. 216 / Wednesday, November 6, 1996 / 
Rules and Regulations  

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1064-I]
RIN 1120-AA59


Incoming Publications: Nudity and Sexually Explicit Material or 
Information

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule.

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SUMMARY: This rule modifies the Bureau of Prisons rule on Incoming 
Publications in order to implement the provisions of the Fiscal Year 
1997 Omnibus Budget Act (Public Law 104-208) prohibiting use of 
appropriated funds for distributing or making available to an inmate 
any commercially published information or material when such 
information or material is sexually explicit or features nudity.

DATES: Effective December 1, 1996; comments must be submitted by 
January 6, 1997.

ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754, 
320 First Street, NW., Washington, D.C. 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General 
Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is adopting interim 
regulations to its existing rule on incoming publications (28 CFR part 
540, subpart F). A final rule on this subject was published June 29, 
1979 (44 FR 38260), as amended December 7, 1982 (47 FR 55129) and 
January 3, 1985 (50 FR 411).
    The current modification implements a provision of the Fiscal Year 
1997 Omnibus Budget Act (P.L. 104-208) that directly affects the 
Bureau. The specific provision provides that none of the funds made 
available in this Act to the Federal Bureau of Prisons may be used to 
distribute or make available any commercially published information or 
material to a prisoner when it is made known to the Federal Official 
having authority to obligate or expend such funds that such information 
or material is sexually explicit or features nudity.
    Based on this statutory restriction, a new Sec. 540.72 is being 
added, entitled, ``Statutory restrictions requiring return of 
commercially published information or material which is sexually 
explicit or features nudity''. This section implements the provisions 
of Public Law 104-208 by providing for the return of the disallowed 
information or material to the publisher or sender. The rule provides 
for the publisher or sender to be notified that an independent review 
of the decision may be obtained by writing to the Regional Director 
within 20 days of receipt of the letter returning the material. The 
inmate is to be provided with written notice of the action. The new 
section contains definitions of ``commercially published information or 
material'', ``nudity'', ``features'', and ``sexually explicit''.
    Other provisions in subpart F have been amended in order to improve 
organization and to update references to the Bureau's provisions on the 
Administrative Remedy Program. Section 540.70, on purpose and scope, 
has been revised to remove procedural details on delegation of 
authority. Those procedural details have been included in 
Sec. 540.71(a). The definition of publication contained in that section 
has been updated to include better examples of material likely to be 
submitted. An introductory phrase, ``Except when precluded by statute 
(see Sec. 540.72),'' has been added to the section in recognition of 
the new legislative requirement. Admendments also have been made in 
Sec. 540.71 (d) and (e) to indicate the retitled Administrative Remedy 
Program and to indicate the longer period of time now available to the 
inmate for filing a remedy request (20 days rather than 15 days).
    Because this statutory restriction on the Bureau of Prisons' 
appropriated funds is applicable with the Fiscal Year beginning October 
1, 1996, the Bureau finds good cause for making this amendment 
effective without a full thirty day delay and without notice of 
proposed rulemaking. The Bureau, however, has elected to publish this 
regulation as an interim rule in order to invite public comment and to 
delay effectiveness until December 1, 1996. Members of the public may 
submit comments concerning this rule by writing to the previously cited 
address. Comments received before the deadline will be considered 
before the rule is finalized; comments received after the deadline will 
be considered to the extent practicable.
    The Bureau of Prisons has determined that this rule is not a 
significant regulatory action for the purpose of E.O. 12866. After 
review of the law and regulations, the Director, Bureau of Prisons has 
certified that this rule, for the purpose of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.), does not have a significant impact on a 
substantial number of small entities beyond that required by the Fiscal 
Year 1997 Omnibus Budget Act. The economic impact of this regulation is 
either limited to the Bureau's appropriated funds or is required by the 
Fiscal Year 1997 Omnibus Budget Act.

List of Subjects in 28 CFR Part 540

    Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.

    Accordingly, pursuant to the rulemaking authority vested in the 
Attorney General in 5 U.S.C. 552(a) and delegated to the Director, 
Bureau of Prisons in 28 CFR 0.96(p), part 540 in subchapter C of 28 
CFR, chapter V is amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 540--CONTACT WITH PERSONS IN THE COMMUNITY

    1. The authority citation for 28 CFR part 540 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 551, 552a; 18 U.S.C. 1791, 3621, 3622, 
3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 
509, 510; Public Law 104-208, Section 614 (110 Stat. 3009); 28 CFR 
0.95-0.99.

    2. Section 540.70 is revised to read as follows:


Sec. 540.70  Purpose and scope.

    Except when precluded by statute (see Sec. 540.72), the Bureau of 
Prisons permits an inmate to subscribe to or to receive publications 
without prior approval and has established procedures to determine if 
an incoming publication is detrimental to the security, discipline, or 
good order of the institution or if it might facilitate criminal 
activity. The term publication, as used in this subpart, means a book, 
booklet, pamphlet, or similar document, or a single issue of a 
magazine, periodical, newsletter, newspaper, plus such other materials 
addressed to a specific inmate such as advertising brochures, flyers, 
and catalogs.
    3. In Sec. 540.71, paragraph (a) is amended by adding two sentences 
at the end, paragraph (d) is amended by revising the phrase 
``Administrative Remedy Procedure'' to read ``Administrative Remedy 
Program'', and paragraph (e) is amended by revising the phrase 
``Administrative Remedy Procedure'' to read ``Administrative Remedy 
Program'' and by revising the phrase ``15 days'' to read ``20 days''.


Sec. 540.71  Procedures.

    (a) * * * The Warden may designate staff to review and where 
appropriate to

[[Page 57569]]

approve all incoming publications in accordance with the provisions of 
this subpart. Only the Warden may reject an incoming publication.
* * * * *
    4. Section 540.72 is added to read as follows:


Sec. 540.72  Statutory restrictions requiring return of commercially 
published information or material which is sexually explicit or 
features nudity.

    (a) When commercially published information or material may not be 
distributed by staff or made available to inmates due to statutory 
restrictions (for example, a prohibition on the use of appropriated 
funds to distribute or make available to inmates information or 
material which is sexually explicit or features nudity), the Warden or 
designee shall return the information or material to the publisher or 
sender. The Warden or designee shall advise the publisher or sender 
that an independent review of the decision may be obtained by writing 
to the Regional Director within 20 days of receipt of the notification 
letter. Staff shall provide the inmate with written notice of the 
action.
    (b) Definitions: For the purpose of this section:
    (1) Commercially published information or material means any book, 
booklet, pamphlet, magazine, periodical, newsletter, or similar 
document, including stationery and greeting cards, published by any 
individual, organization, company, or corporation which is distributed 
or made available through any means or media for a commercial purpose. 
This definition includes any portion extracted, photocopied, or clipped 
from such items.
    (2) Nudity means a pictorial depiction where genitalia or female 
breasts are exposed.
    (3) Features means the publication contains depictions of nudity or 
sexually explicit conduct on a routine or regular basis or promotes 
itself based upon such depictions in the case of individual one-time 
issues. Publications containing nudity illustrative of medical, 
educational, or anthropological content may be excluded from this 
definition.
    (4) Sexually explicit means a pictorial depiction of actual or 
simulated sexual acts including sexual intercourse, oral sex, or 
masturbation.

[FR Doc. 96-28565 Filed 11-5-96; 8:45 am]
BILLING CODE 4410-05-P