[Federal Register Volume 62, Number 237 (Wednesday, December 10, 1997)]
[Rules and Regulations]
[Pages 65184-65186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32325]



[[Page 65183]]

_______________________________________________________________________

Part IV





Department of Justice





_______________________________________________________________________



Bureau of Prisons



_______________________________________________________________________



28 CFR Part 540



Correspondence: Restricted Special Mail Procedures; Final Rule



Correspondence: Pretrial Inmates; Final Rule

  Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / 
Rules and Regulations  

[[Page 65184]]


-----------------------------------------------------------------------


DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1048-F]
RIN 1120-AA48


Correspondence: Restricted Special Mail Procedures

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Bureau of Prisons is amending its 
regulations on correspondence to provide for restricted special mail 
procedures in instances where the Warden has reason to believe that the 
special mail either has posed a threat or may pose a threat of physical 
harm to the intended recipient. Under these procedures, such special 
mail is subject to inspection, in the presence of the inmate, for 
contraband and, at the request of the intended recipient, may be read 
for the purpose of verifying that the special mail does not contain a 
threat of physical harm. These amendments are intended to provide for 
the continued efficient and secure operation of the institution and to 
protect the public.

EFFECTIVE DATE: January 9, 1998.

ADDRESSES: 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 is amending its 
regulations on correspondence (28 CFR part 540). A proposed rule on 
this subject was published in the Federal Register February 14, 1996 
(61 FR 5846).
    Provisions in Sec. 540.18(c) previously stated that outgoing 
special mail may be sealed by the inmate and is not subject to 
inspection. The Bureau proposed a revised paragraph (c) to allow for 
restricted special mail procedures for special mail addressed to 
Federal court officials and members of Congress, and, if so requested, 
to other intended recipients. These restricted special mail procedures 
would apply in cases where the Warden (with the concurrence of the 
Regional Counsel) documents in writing that the inmate's special mail 
either has posed a threat or may pose a threat of physical harm to the 
intended recipient. Any inmate placed on restricted special mail status 
would be notified in writing by the Warden of the reason for being so 
placed. The Warden is required to review an inmate's restricted special 
mail status at least once every 180 days and to notify the inmate in 
writing of the results of that review. The inmate may be removed from 
restricted special mail status if the Warden (with the concurrence of 
the Regional Counsel) determines that the inmate's special mail does 
not threaten or pose a threat of physical harm to the intended 
recipient. Such determinations are based on a comprehensive review of 
pertinent factors, such as the inmate's institutional adjustment, 
institution security level, and a current assessment of the conditions 
which led to the inmate's placement into restricted special mail 
status.
    The Bureau received 8 comments on its proposed rule. Comment 
generally focused on the purported need for the proposed restrictions, 
possible infringement on the confidentiality of the attorney-client 
privilege, possible delay in handling mail being sent to courts, 
consideration of other means of dealing with the threat posed by such 
special mail (including duplicative security measures in place for 
recipients), ulterior motivation for the restrictions, and the general 
futility of preventing abuse.
    With respect to the need for the regulation, the Bureau disagrees 
with suggestions that the rule misrepresents its intent. The rule is 
not intended to restrict an inmate's legal access. Instead, it is 
intended to help ensure institution security, discipline, and good 
order, and to protect the public. The Bureau notes that instances have 
occurred where special mail has caused, or has threatened physical 
injury to the recipient. While these instances may not constitute a 
widespread problem, neither do the procedures for restricted special 
mail status pose any change to the special mail privilege for the vast 
majority of inmates. Even so, for the purpose of assuring its 
commitment to the integrity of special mail, the Bureau has modified 
the proposed procedures to protect the special mail privilege to the 
extent practicable and commensurate with the need for the security, 
discipline and good order of the institution.
    As previously proposed, the procedures apply only to inmates who 
have been placed on restricted special mail status (that is to say, 
those inmates whose special mail has been documented by the Warden, 
with the concurrence of the Regional Counsel, either to have posed a 
threat or which may pose a threat to the recipient). An inmate in this 
status must present all materials and packaging intended to be sent as 
special mail to staff for inspection. Staff shall inspect the special 
mail material and packaging, in the presence of the inmate, for 
contraband. This last provision deletes the proposed phrase ``or the 
threat of physical harm'', as its intent is encompassed within the 
remaining provision of inspecting for contraband. This change addresses 
the concern of commenters that the proposed procedure infringes upon 
the confidentiality of the attorney-client privilege or access to the 
courts. As revised, the rule now states that staff reading of the 
correspondence is restricted to when the recipient of the special mail 
has so requested (the rule as proposed had assumed such permission with 
respect to Federal court officials and members of Congress). As 
revised, the procedure now more closely parallels the process for 
inspecting incoming special mail (see Sec. 540.18).
    Upon completion of the inspection, staff shall return the special 
mail material to the inmate if the material does not contain contraband 
or, when requested by the intended recipient, a reading determines that 
there is no threat of physical harm. The inmate must then seal the 
special mail material in the presence of staff. Special mail determined 
to pose a threat shall be forwarded to the appropriate law enforcement 
entity, and staff shall send a copy of the material, minus the 
contraband, to the intended recipient along with notification that the 
original of the material was forwarded to the appropriate law 
enforcement entity.
    In response to comments, the Bureau does not expect this procedure 
to have much impact on the processing of special mail. The limited 
applicability of the rule and the general Bureau policy that mail be 
handled promptly should ensure that this mail is processed in a timely 
fashion.
    In response to commenters who suggested that sufficient and less 
restrictive means were available to the intended recipients of special 
mail to address threats posed by the special mail, the Bureau believes 
its procedures are both prudent and unobstrusive. Visually observing 
the assembling of special mail serves to deter the actual transmission 
of dangerous materials and is compatible with the existing procedures 
for handling incoming special mail (see Sec. 540.18). This protects 
both the intended recipient and other persons involved in the delivery 
or opening of the special mail. While the Bureau acknowledges, as one 
commenter noted, that this procedure may not be successful in 
preventing every possible instance of harm, the

[[Page 65185]]

procedure is intended to operate in conjunction with other procedures, 
such as the ones alluded to by other commenters. Any resultant increase 
in security which may be obtained through these new procedures clearly 
is a benefit to the public.
    Several commenters expressed concern that Bureau of Prisons staff 
may abuse their discretion under this provision. As shown, the scope of 
this rule is clearly limited in its application. Bureau of Prisons 
staff are professionals and will be familiar with the procedures for 
applying this rule. In the unlikely event of staff abuse, appropriate 
disciplinary action will be initiated and appropriate sanctions 
imposed.
    Other commenters raised questions on the general provisions for 
screening, e.g., how it will be requested, criteria used for assessing 
threat. In response to such comments, the Bureau again notes that this 
rule will have limited applicability, with such application governed by 
Sec. 540.18(c)(2). Placement requires legal review, and notification to 
the inmate of the reasons for placement. An inmate who disagrees with 
this decision may appeal the decision through the Administrative Remedy 
Program (28 CFR part 542).
    A commenter questioned the statement in Sec. 540.18(d) advising the 
recipient of special mail that if the writer raises a question over 
which the facility has jurisdiction, the recipient may wish to return 
the material for further information or clarification. The commenter 
believes that this provision is vague, and that it either should be 
deleted or specify the return is to the inmate. The Bureau disagrees 
with this suggestion. This statement is not new and is intended to 
offer the recipient the opportunity to contact the Bureau of Prisons if 
that recipient desires further information or clarification over a 
matter under the Bureau's jurisdiction. The choice on whether this is 
done is clearly with the recipient of the special mail, and is not 
violative of an inmate's legal rights.
    As a final general comment, the Bureau notes that the provisions 
for restricted special mail are designed to protect the public and are 
not motivated by a desire to censor special mail. The procedures for 
visually observing the assembling of special mail are not dissimilar to 
procedures already in place for the delivery of special mail. Neither 
inspection represents any attempt to censor mail. In those instances 
where the intended recipient has authorized staff to read the special 
mail (see Sec. 540.18(c)(2)(iii)), the special mail, or a copy of the 
special mail in cases where the mail has been determined to pose a 
threat of physical harm, is forwarded to the recipient.
    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 
correctional 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.

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; 28 CFR 0.95-0.99.

    2. In Sec. 540.18, paragraphs (c) and (d) are revised to read as 
follows:


Sec. 540.18  Special mail.

* * * * *
    (c)(1) Except as provided for in paragraph (c)(2) of this section, 
outgoing special mail may be sealed by the inmate and is not subject to 
inspection.
    (2) Special mail shall be screened in accordance with the 
provisions of paragraph (c)(2)(iii) of this section when the special 
mail is being sent by an inmate who has been placed on restricted 
special mail status.
    (i) An inmate may be placed on restricted special mail status if 
the Warden, with the concurrence of the Regional Counsel, documents in 
writing that the special mail either has posed a threat or may pose a 
threat of physical harm to the recipient (e.g., the inmate has 
previously used special mail to threaten physical harm to a recipient).
    (ii) The Warden shall notify the inmate in writing of the reason 
the inmate is being placed on restricted special mail status.
    (iii) An inmate on restricted special mail status must present all 
materials and packaging intended to be sent as special mail to staff 
for inspection. Staff shall inspect the special mail material and 
packaging, in the presence of the inmate, for contraband. If the 
intended recipient of the special mail has so requested, staff may read 
the special mail for the purpose of verifying that the special mail 
does not contain a threat of physical harm. Upon completion of the 
inspection, staff shall return the special mail material to the inmate 
if the material does not contain contraband, or contain a threat of 
physical harm to the intended recipient. The inmate must then seal the 
special mail material in the presence of staff and immediately give the 
sealed special mail material to the observing staff for delivery. 
Special mail determined to pose a threat to the intended recipient 
shall be forwarded to the appropriate law enforcement entity. Staff 
shall send a copy of the material, minus the contraband, to the 
intended recipient along with notification that the original of the 
material was forwarded to the appropriate law enforcement entity.
    (iv) The Warden shall review an inmate's restricted special mail 
status at least once every 180 days. The inmate is to be notified of 
the results of this review. An inmate may be removed from restricted 
special mail status if the Warden determines, with the concurrence of 
the Regional Counsel, that the special mail does not threaten or pose a 
threat of physical harm to the intended recipient.
    (v) An inmate on restricted mail status may seek review of the 
restriction through the Administrative Remedy Program.
    (d) Except for special mail processed in accordance with paragraph 
(c)(2) of this section, staff shall stamp the following statement 
directly on the back side of the inmate's outgoing special mail: ``The 
enclosed letter was processed through special mailing procedures for 
forwarding to you. The letter has neither been opened nor inspected. If 
the writer raises a question or problem over which this facility has 
jurisdiction, you may wish to return the material for further 
information or clarification. If the writer encloses correspondence for 
forwarding to

[[Page 65186]]

another addressee, please return the enclosure to the above address.''

[FR Doc. 97-32325 Filed 12-9-97; 8:45 am]
BILLING CODE 4410-05-P