[Federal Register Volume 62, Number 119 (Friday, June 20, 1997)]
[Rules and Regulations]
[Pages 33730-33732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16208]



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Part IV





Department of Justice





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Bureau of Prisons



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28 CFR Part 501



Scope of Rules: National Security; Prevention of Acts of Violence and 
Terrorism; Rule

  Federal Register / Vol. 62, No. 119 / Friday, June 20, 1997 / Rules 
and Regulations  

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 501

[BOP-1046-F; BOP-1059-F]
RIN 1120-AA47; RIN 1120-AA54


Scope of Rules: National Security; Prevention of Acts of Violence 
and Terrorism

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: This document finalizes Bureau of Prisons interim rules on 
institutional management with respect to special administrative 
measures that may be necessary to prevent the disclosure of classified 
information that could endanger national security and to prevent acts 
of violence and terrorism, either of which may be caused by contacts 
with certain inmates. The affected inmate must be notified in writing 
as promptly as possible of the restrictions to be imposed. Restrictions 
may be imposed initially for up to 120 days, and may be extended in 
further increments of 120 days only upon additional written 
notification that the circumstances identified in the original 
certification continue to exist.

EFFECTIVE DATE: This rule shall take effect June 20, 1997.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

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

SUPPLEMENTARY INFORMATION: The Bureau of Prisons (``Bureau'') is 
finalizing its interim regulations on the correctional management of 
inmates whose contacts with other persons present the potential for 
disclosure of classified information that could endanger national 
security or for acts of violence and terrorism. An interim rule on 
preventing the disclosure of classified information was published in 
the Federal Register on October 13, 1995 (60 FR 53490). No public 
comment was received, and the interim rule is adopted, with only minor 
changes. In the second sentence of section 501.2(a), the word 
``ordinarily'' is added, and the word ``housing'' is substituted for 
``placing''. This sentence also adds the phrase, ``interviews with 
representatives of the news media'' as another example where privileges 
may be limited. The existing rule contained a listing that said, ``* * 
* limiting certain privileges, including, but not limited to, * * *'' 
In section 501.2(b), the phrase, ``as soon as practicable'' is 
substituted for ``as promptly as possible.'' None of these revisions 
change the intent of the rule.
    An interim rule on preventing acts of violence and terrorism was 
published in the Federal Register on May 17, 1996 (61 FR 25120). Public 
comment was received on this rule and is responded to below.
    Comments generally expressed concern that the regulation is 
violative of a person's First Amendment rights, with one commenter 
stating that the First Amendment ``prohibits governmental interference 
with freedom of speech and freedom of press.'' The commenter states 
that any such restriction must be based on substantial and controlling 
state interest and that the restriction be the least drastic method of 
accomplishing the state goal. The commenter believes this restriction 
may not pass the above test.
    In response, the Bureau of Prisons notes that the U.S. Supreme 
Court in Pell v. Procunier, 417 U.S. 817, 822, 823 (1974), held that 
``* * * a prison inmate retains those First Amendment rights that are 
not inconsistent with his status as a prisoner or with the legitimate 
penological objectives of the corrections system * * * An important 
function of the corrections system is the deterrence of crime * * * 
Finally, central to all other corrections goals is the institutional 
consideration of internal security within the corrections facilities 
themselves.'' We believe this regulation, with its concern of security 
and protection of the public, meets this test. Nor do we agree with the 
commenter's suggestion that the rule is unnecessary since it has not 
been needed in the past, and, the commenter believes, ``no death or 
injury has resulted from a federal prisoner[']s communication with 
unincarcerated individuals.'' It is not necessary to experience such an 
incident before regulations can be implemented to address the need.
    Other commenters acknowledge that the regulation was promulgated in 
order to protect the safety of government officials and the general 
public, and, as stated by one of the commenters, do ``not dispute the 
legitimacy of the goals underlying the interim regulations.'' 
Notwithstanding this acknowledgment, these commenters also addressed 
the First Amendment issue. They viewed the regulation as overbroad, as 
more expansive than necessary, and as possibly indiscriminately barring 
expression of speech that does not pose any threat to Federal officials 
or those outside of prison. Other comments said that the regulation may 
prevent the press from fully reporting on the very people who ``may 
threaten society the most'', and that the regulation forecloses other 
avenues of obtaining information; that the ``complete ban suggested by 
the regulation * * * is legally impermissible'; and that the regulation 
is imposed ``without sufficient checks and balances to challenge 
government action.''
    As noted by one commenter, the U.S. Supreme Court has held that the 
press has no constitutional right of access to prisons or their inmates 
beyond that afforded the general public. See Pell v. Procunier, 417 
U.S. 817 (1974) and Saxbe v. Washington Post Co., 417 U.S. 843 (1974). 
In this context, the Bureau of Prisons disagrees with the broad scope 
of comment that the public is the ultimate decider of what it wants to 
hear from the inmates. Where the issue is prevention of acts of 
violence and terrorism, it is appropriate for government officials, at 
the highest level and acting on the basis of their intelligence 
information, to impose restrictions on an inmate's public dissemination 
of information that may cause such acts. The rule, however, in no way 
is intended to prevent inmates, as suggested by commenters, from 
communicating about the prison system. In one sense, the government 
officials, as are the press, are operating on behalf of the public. As 
noted below, there are means by which disagreements can be addressed.
    Further, as noted at the time of the interim rule's publication, 
the application of these measures is likely to affect only a minute 
portion of the inmate population; those inmates for whom there is an 
identified concern by a government official of the highest level that 
the inmate's communications with other persons could serve as an 
instrumentality for acts of violence and terrorism. These measures will 
be subject to strict controls, as their implementation may occur only 
upon written notification by the Attorney General, or at his or her 
direction, by the head of a federal law enforcement agency or the head 
of a member agency of the United States intelligence community, that 
there is a substantial risk that a prisoner's communications or 
contacts with persons could result in death or serious bodily injury to 
persons, or substantial damage to property that would entail the risk 
of death or serious bodily injury to persons. The Bureau of Prisons 
finds this standard consistent with the commenter who suggests, ``At a 
minimum, the standards for restrictive inmate privileges such as those 
described in the regulation should be

[[Page 33731]]

that there is clear and convincing evidence of a substantial risk to 
death or serious bodily injury.''
    The regulation also addresses commenters' concern that the 
regulation is overbroad, and that it may indiscriminately bar 
expression of speech. It is not the intention of the Bureau of Prisons 
that the restrictions imposed in these special cases routinely include 
complete curtailment of privileges, including all means of access, but 
rather the regulation is directed to allowing the imposition of 
appropriate limitations, as needed to prevent acts of violence and 
terrorism. For example, it is possible, in response to one comment, 
that an inmate subject to the provisions of this regulation, would be 
allowed to be interviewed by the media, but with the necessary 
conditions imposed to meet what one commenter refers to as ``the 
legitimacy of the goals underlying the interim regulations.''
    In addition, an inmate upon whom these special restrictions are 
imposed is entitled to notification in writing of the imposed 
restrictions and the basis for the restrictions. This ensures the 
inmate is aware of the rule's implementation. The affected inmate may 
appeal imposition of restrictions ordered under this section through 
the Bureau's Administrative Remedy Program, 28 CFR part 542.
    A commenter correctly points out that the rule does not provide a 
formal administrative measure by which a non-inmate may challenge the 
restrictions on the inmate's privileges. Such an administrative 
mechanism is not considered necessary as the inmate is notified of the 
reasons and of the means to appeal the decision. Certainly, a non-
inmate may contact the Bureau of Prisons, with the extent of 
information provided governed by the security concerns involved and the 
privacy rights of the inmate. Further, this regulation poses no 
restriction on an individual's right to initiate judicial action.
    Contrary to one comment, the regulation as promulgated fully 
conforms to First Amendment requirements and provides an inmate with 
due process. The inmate is notified of any restrictions imposed and is 
given the opportunity to appeal those restrictions. It appears the 
commenter may believe the regulation allows an inmate to be placed in 
disciplinary segregation status (commenter refers to ``placing a 
prisoner in segregation without a due process hearing.'') That is not 
the case, as a disciplinary segregation placement would occur not on 
the basis of this regulation, but only as a result of an inmate being 
found, after a limited due process hearing, to have committed an 
infraction of an institution's prohibited act.
    As previously noted, commenters' concerns appear to relate more to 
a misapplication of the rule rather than to the purpose of the rule. 
For example, one commenter stated there was no dispute of the 
legitimacy of the goals underlying the interim regulations, but saw the 
regulation as overbroad. Other comments expressed concern over the 
potential for a lack of accountability and/or abuse, including abuse by 
government officials who wish to deny the media access for illegitimate 
reasons, such as ``content-based suppression of speech.'' The Bureau of 
Prisons regulation is promulgated to alleviate such concerns. The rule 
provisions for implementation only at the direction of the Attorney 
General, or at her designation, the head of a federal law enforcement 
agency or head of a member agency of the United States intelligence 
community, coupled with the provision limiting its provisions to 120 
days (unless specifically renewed) help ensure against such abuse. The 
Department's Standards of Professional Conduct also serve as a 
constraint. These provisions, in conjunction with other aspects 
discussed above, such as the inmate's opportunity to file an 
administrative appeal and the rule's intent to ordinarily not curtail 
all access, serve as ``checks and balances'' on the addressing of this 
very serious issue of preventing violence and acts of terrorism.
    It is unclear as to what is being requested by a comment that the 
rule be revised to ``prohibit the unilateral involvement of federal law 
enforcement and intelligence agencies in access decisions.'' The scope 
of this rule is to prevent acts of violence and terrorism. The federal 
law enforcement and intelligence agencies are charged with this 
responsibility. The rule, as drafted, recognizes this aspect but 
carries constraints, such as approval by the Attorney General, re-
approval every 120 days and the inmate's right to appeal, to help 
ensure that the rule is applied appropriately. The Bureau of Prisons is 
not aware of any further revision that may be made to more effectively 
achieve the intent of the rule without increasing the potential for 
acts of violence and terrorism.
    A commenter suggested that the interim rule be amended to create 
guidelines specifying the referral of suspicious mails and 
communications to the appropriate investigatory agency. This comment is 
outside the scope of the current rule. However, it is an issue that the 
Bureau of Prisons is examining with respect to its internal procedures.
    A commenter believes that the Bureau's rule sets a ``dangerous 
example for the state prison systems, which may be less appreciative of 
the constitutional restrictions on banning speech, and therefore may be 
less exacting.'' In response, the Bureau notes that its rule is limited 
to Federal prisons, and does not directly affect the state prison 
systems. The Bureau fully expects any state that would feel it 
appropriate to initiate such a procedure would do so with a full 
awareness of the applicable restrictions.
    The one change made to this interim rule is in the first sentence 
of section 501.3(a), where the word ``measures'' is substituted for the 
word ``procedures.'' The intent of the section is unchanged.
    Members of the public may submit comments concerning this rule by 
writing to the previously cited address. These comments will be 
considered but will receive no further response in the Federal 
Register.
    The Bureau of Prisons has determined that this rule is not a 
significant regulatory action for the purpose of E.O. 12866, and 
accordingly this rule was not reviewed by the Office of Management and 
Budget. 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 economic impact on a substantial number of small entities 
within the meaning of the Act. Because this rule pertains to the 
management of offenders committed to the custody of the Attorney 
General or the Director of the Bureau of Prisons, its economic impact 
is limited to the Bureau's appropriated funds. This rule will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or the distribution of power 
and responsibilities among the various levels of government. Therefore, 
in accordance with section 6 of E.O. 12612, it is determined that this 
rule does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

List of Subjects in 28 CFR Part 501

    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 501 in

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subchapter A of 28 CFR, chapter V is amended as set forth below:

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 501--SCOPE OF RULES

    1. The authority citation for 28 CFR part 501 continues 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; 28 
CFR 0.95-0.99.

    2. Sections 501.2 and 501.3 are revised to read as follows:


Sec. 501.2  National security cases.

    (a) Upon direction of the Attorney General, the Director, Bureau of 
Prisons, may authorize the Warden to implement special administrative 
measures that are reasonably necessary to prevent disclosure of 
classified information upon written certification to the Attorney 
General by the head of a member agency of the United States 
intelligence community that the unauthorized disclosure of such 
information would pose a threat to the national security and that there 
is a danger that the inmate will disclose such information. These 
special administrative measures ordinarily may include housing the 
inmate in administrative detention and/or limiting certain privileges, 
including, but not limited to, correspondence, visiting, interviews 
with representatives of the news media, and use of the telephone, as is 
reasonably necessary to prevent the disclosure of classified 
information. The authority of the Director under this paragraph may not 
be delegated below the level of Acting Director.
    (b) Designated staff shall provide to the affected inmate, as soon 
as practicable, written notification of the restrictions imposed and 
the basis for these restrictions. The notice's statement as to the 
basis may be limited in the interest of prison security or safety or 
national security. The inmate shall sign for and receive a copy of the 
notification.
    (c) Initial placement of an inmate in administrative detention and/
or any limitation of the inmate's privileges in accordance with 
paragraph (a) of this section may be imposed for up to 120 days. 
Special restrictions imposed in accordance with paragraph (a) of this 
section may be extended thereafter by the Director, Bureau of Prisons, 
in 120-day increments only upon receipt by the Attorney General of 
additional written certification from the head of a member agency of 
the United States intelligence community, that the circumstances 
identified in the original certification continue to exist. The 
authority of the Director under this paragraph may not be delegated 
below the level of Acting Director.
    (d) The affected inmate may seek review of any special restrictions 
imposed in accordance with paragraph (a) of this section through the 
Administrative Remedy Program, 28 CFR part 542.


Sec. 501.3  Prevention of acts of violence and terrorism.

    (a) Upon direction of the Attorney General, the Director, Bureau of 
Prisons, may authorize the Warden to implement special administrative 
measures that are reasonably necessary to protect persons against the 
risk of death or serious bodily injury. These procedures may be 
implemented upon written notification to the Director, Bureau of 
Prisons, by the Attorney General or, at the Attorney General's 
direction, by the head of a federal law enforcement agency, or the head 
of a member agency of the United States intelligence community, that 
there is a substantial risk that a prisoner's communications or 
contacts with persons could result in death or serious bodily injury to 
persons, or substantial damage to property that would entail the risk 
of death or serious bodily injury to persons. These special 
administrative measures ordinarily may include housing the inmate in 
administrative detention and/or limiting certain privileges, including, 
but not limited to, correspondence, visiting, interviews with 
representatives of the news media, and use of the telephone, as is 
reasonably necessary to protect persons against the risk of acts of 
violence or terrorism. The authority of the Director under this 
paragraph may not be delegated below the level of Acting Director.
    (b) Designated staff shall provide to the affected inmate, as soon 
as practicable, written notification of the restrictions imposed and 
the basis for these restrictions. The notice's statement as to the 
basis may be limited in the interest of prison security or safety or to 
protect against acts of violence or terrorism. The inmate shall sign 
for and receive a copy of the notification.
    (c) Initial placement of an inmate in administrative detention and/
or any limitation of the inmate's privileges in accordance with 
paragraph (a) of this section may be imposed for up to 120 days. 
Special restrictions imposed in accordance with paragraph (a) of this 
section may be extended thereafter by the Director, Bureau of Prisons, 
in 120-day increments upon receipt by the Director of additional 
written notification from the Attorney General, or, at the Attorney 
General's direction, from the head of a federal law enforcement agency, 
or the head of a member agency of the United States intelligence 
community, that the circumstances identified in the original 
notification continue to exist. The authority of the Director under 
this paragraph may not be delegated below the level of Acting Director.
    (d) The affected inmate may seek review of any special restrictions 
imposed in accordance with paragraph (a) of this section through the 
Administrative Remedy Program, 28 CFR part 542.

[FR Doc. 97-16208 Filed 6-19-97; 8:45 am]
BILLING CODE 4410-05-P