[Federal Register Volume 67, Number 242 (Tuesday, December 17, 2002)]
[Rules and Regulations]
[Pages 77161-77164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31310]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1009-F]
RIN 1120-AA15


Incoming Publications: Softcover Materials

AGENCY: Bureau of Prisons, DOJ.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises its 
regulations on incoming publications. The amendment provides that 
inmates in medium security, high security, and administrative 
institutions may receive softcover materials only from a publisher, 
book club, or bookstore. This amendment is necessary to reduce the 
amount of contraband introduced into Federal prisons through materials 
sent by mail. The presence of contraband in the prisons, including 
drugs, weapons, and escape-related materials pose grave dangers to 
staff, inmates and the public. We considered alternate solutions to the 
problem of intercepting contraband, such as the use of technological 
security devices or increased staffing, but determined that these 
options wereimpracticable. This rule change also allows the Unit 
Manager to make an exception to this requirement and to the existing 
similar requirement for hardcover publications and newspapers. We 
intend this rule change to strengthen security procedures designed to 
prevent introduction to contraband into Bureau institutions.

EFFECTIVE DATE: January 16, 2003.

ADDRESSES: 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 regulations on 
incoming publications (28 CFR part 540, subpart F). Regulations in 28 
CFR 540.71 had allowed an inmate to receive paperback books and 
magazines from any source. A proposed rule was published in the Federal 
Register on January 18, 1994 (59 FR 2668). The proposed rule required 
that, in medium security, high security, and administrative 
institutions, only softcover publications from the publisher, book 
club, or book store would be permitted. Existing regulations already 
required this restriction on hardcover books and newspapers.
    The proposed rule also provided for exceptions when a publication 
was no longer available from the publisher, book club, or bookstore. In 
such cases, the Unit Manager may require that the inmate provide 
written documentation that the publication is no longer available from 
these sources.
    The proposed amendment was intended to simplify, and consequently 
strengthen, Bureau procedures designed to prevent the introduction of 
contraband into Bureau institutions. Bureau regulations on inmate legal 
activities (28 CFR part 543, subpart B) which restated in Sec.  
543.11(d) the policy on receipt of incoming publications were also 
proposed to be revised in a conforming amendment.
    The public comment period on the Bureau's proposed rule closed on 
March 21, 1994. Comments were received from approximately 187 
commenters (approximately 176 submitting a form letter response). A 
summary of the issues raised by these comments and agency response 
follow.
    The form letter stated that the proposed regulation discriminated 
against all prisoners, indigent prisoners, religious organizations and 
groups, legal organizations and groups, news organizations and groups, 
small and independent businesses and employees, and free enterprise. 
The form letter also claimed that the proposed regulation cut prisoners 
off from their local, national, and international community contact and 
ties; impaired First Amendment rights to religious freedom; impaired a 
right to read, learn, and mentally, emotionally and spiritually grow 
and progress; and inflicted severe economic additional hardships on the 
families and friends of inmates, and on the general national and 
international communities. Finally, the form letter claimed the 
proposed regulations were in violation of the Constitution (in 
particular, the First Amendment), and were in violation of the Geneva 
Convention, international treaties and agreements, and the Universal 
Declaration of Human Rights. No specifics were provided regarding the 
latter alleged violations.
    As an initial response, the Bureau notes that the rule applies to 
inmates in medium security, high security, and administrative 
facilities only. As of September, 2002, approximately 51% of federal 
inmates were housed in minimum and low security institutions, and would 
therefore be unaffected by this amendment. Based upon a general 
reevaluation of security needs at all facilities, the Bureau is 
considering extending the restriction to minimum and low security level 
institutions. That amendment will be addressed in a new proposed rule.
    In any case, the revised regulations do not stop inmates from 
maintaining local, national, and international community contact and 
ties. Rather, the regulations address how the contact may be maintained 
through the media of softcover materials. Further specific response is 
provided below in conjunction with responses to other individual 
commenters (including those

[[Page 77162]]

few form letters which contained additional comments).
    Some commenters stated that this rule would discriminate against 
the indigent and create severe economic hardships, not only on indigent 
inmates, but also on their families, who would not be able to send 
material which the family had acquired initially for their own use.
    The Bureau believes that this concern ignores other resources 
available to inmates and other avenues of recirculating softcover 
materials. For example, inmates retain access to a variety of reading 
materials in the institution's library. Inmates and their families can 
mitigate the presumed severe economic impact: Books sent to the inmate 
by family from a publisher, bookstore, or book club could be mailed by 
the inmate back to family or friends after the inmate has finished with 
the book. General limitations on inmate personal property preclude an 
inmate from amassing a large library of reading materials. Ordinarily 
the inmate would need to dispose of excess personal material such as 
books. Mailing the books back to family or friends accomplishes both 
purposes.
    Even so, we believe that the Bureau's need to maintain a secure 
facility free from contraband outweighs any presumed economic hardship 
or inconvenience experienced by families or by inmates with relation to 
the minimal cost of mailing materials to family. The Bureau is 
mandated, in 18 U.S.C. 4042(a)(3), to provide for the protection and 
discipline of those in our custody. This statutory mandate compels us 
to limit the introduction of contraband, which may endanger the health, 
safety, and security of inmates and Bureau employees, despite minimal 
costs or inconveniences to the inmate, family or friends.
    One commenter expressed concern that, because of specific 
assessments and/or fines, many inmates would not be able to afford 
magazine subscriptions or would have to make choices in the expenditure 
of their available funds.
    If this is meant to imply that the inmate's only recourse is to 
solicit magazines from family and friends, the Bureau's response is 
that the revised regulations do not preclude family and friends from 
responding to such requests by initiating subscriptions under the 
inmate's name. With respect to the inmate's having to make choices on 
the expenditure of his or her funds, the Bureau notes that such 
decisions are not unique to inmates, but are an ordinary practice for 
all responsible persons.
    With respect to the general comment that the proposed rule was 
unconstitutional (based on perceived violations of various amendments), 
the Bureau disagrees, noting that the revised regulations are a 
rational means of achieving a legitimate correctional management goal 
(namely, to preserve internal order and discipline and to maintain 
institutional security) and that the inmate has other means to obtain 
similar information.
    More specifically, one commenter argued that the proposed rule 
violates the First Amendment rights of non-prisoners to mail what they 
choose. We believe that security considerations support the proposed 
restrictions on what inmates may receive in medium security, high 
security, and administrative facilities. As noted above, the Bureau 
believes that security needs at minimum and low security institutions 
may warrant similar restrictions, and that will be the subject of a 
separate proposed rulemaking.
    The same commenter felt that the proposal is unconstitutionally 
over-inclusive. The restrictions that the proposed amendment creates, 
however, are not ``unnecessarily broad.'' The amendment does not 
totally ban incoming softcover materials; it merely restricts the 
sources that these materials may come from, in the same manner as is 
done for hardcover materials and newspapers.
    With respect to commenters who suggested that the proposed rule 
impermissibly violated the First Amendment right to religious freedom 
or discriminated against religious organizations and groups, the Bureau 
disagrees. The rule is content neutral. Inmates are still entitled to 
the same publications as before the proposed rule; we only change the 
means of obtaining these publications.
    One commenter suggested that the proposed rule violates the 
Constitution on equal protection grounds. The commenter felt the ``the 
proposed rule is discriminatory by denying equal opportunity'' to those 
low and minimum security inmates who are incarcerated in administrative 
facilities. The Bureau believes that the nature of administrative 
facilities requires procedural regulation based on the highest common 
denominator of inmates at the facility. The dedication of monetary and 
staff resources to allow for differentiation between security levels of 
inmates at any one administrative institution would be impracticable. 
Placement in an administrative facility is ordinarily a temporary 
assignment.
    Other commenters further alleged that the rule is unconstitutional 
on the grounds of Fifth Amendment due process. However, the amendment 
poses neither a procedural nor a substantive due process violation. The 
rulemaking's comment period provided the public, including inmates, 
with an opportunity to voice their comments and concerns about the 
proposed rule. The inmate retains further due process protection 
through use of the administrative remedy program (28 CFR part 542).
    Commenters argued that the proposed rule will deny them ``the right 
to read, learn and mentally, spiritually, and emotionally grow and 
progress.'' The Bureau disagrees. Inmates still retain the opportunity 
to obtain the material; the means of access have been limited for 
security reasons.
    As stated above, the goal of the Bureau is to maintain security 
within the facilities free from contraband. Under the new rule, inmates 
are still permitted to read the same types of publications that they 
have been allowed to read before the proposed rule. Additionally, 
inmates can always ``read, learn and mentally, spiritually and 
emotionally grow and progress'' in the facility's library, which serves 
as an additional resource. Inmates are also provided with educational 
programs within the facility.
    Several commenters questioned the Bureau's motives for issuing the 
amendment. In particular, a commenter suggested that the Bureau may be 
attempting to control ``the free flow of ideas through prison walls.'' 
Another commenter felt that ``the rule is aimed more at controlling the 
political content of the information that inmates receive rather than 
controlling the introduction of contraband.'' The Bureau emphasizes 
that this regulation operates in a content-neutral fashion and is not 
part of any attempt to control the content of the materials coming into 
Bureau correctional facilities.
    A third commenter suggested that the rule is partly motivated by 
the book publishers ``pushing for the sale of a new book rather than 
have a used one passed on to prisoners'' from outside sources. The 
Bureau's action is based on security concerns and has not been spurred 
by the interests of book publishers.
    Some commenters argued that the proposed rule was overly 
restrictive. One commenter claimed the motivation behind this rule was 
``a Bureau desire to re-allocated staff resources'' without regard for 
the impact upon inmates and the general public. This commenter felt 
that the interest of the public in allowing inmates to receive 
softcover publications outweighed the interest of the Bureau to re-
allocate staff resources.

[[Page 77163]]

    The Bureau believes that the revised regulations properly balance 
security needs of the higher rated institutions and the inmate 
population, given the limitations of budgetary constraints. The current 
restrictions on sources for hardcover materials have functioned 
effectively to reduce the risk of contraband entering the institution. 
In contrast, the lack of restrictions on softcover materials has become 
problematic. for example, at one high security institution, over the 
course of a year approximately 25 softcover materials received at the 
institution contained contraband. In most instances, the contraband was 
drug-related.
    It is important to note that the presence of even minute quantities 
of drug contraband pose serious problems to the security, discipline, 
and good order of a correctional institution. Through this rulemaking, 
extend to softcover materials procedures that have proven effective for 
hardcover materials.
    As for the question of reallocating staff time, one anticipated 
benefit is a reduction in the amount of tome taken to process 
contraband which enters that institution by minimizing the likelihood 
that contraband will be mailed into the institution. Staff will 
continue to examine all mail (including softcover materials from a 
publisher, book store, or book club) for contraband.
    Several commenters felt that the threat of contraband from soft 
cover materials should be addressed through use of ``high tech security 
features'' or revised mail room procedures. The Bureau believes 
reliance upon ``high tech security features'' is not practicable in 
this instance, given the limitations of budget and available 
technology.
    Staff currently examine all mail both manually and with x-ray 
scanners. While these scanners are effective for identifying metallic 
contraband, they are not effective for paper contraband or for organic 
contraband such as drugs. The cost of devices designed to detect drugs 
ranges from $36,000 to over $100,000 per unit, depending upon the type 
of device selected. No one type of device is technically suitable for 
all of the various types of drug contraband. Consequently, an 
institution may need more than one of these devices. The Bureau 
currently operates 107 institutions; 54 of these institutions are 
medium security level or higher and consequently are covered under the 
revised regulations. The minimum cost to purchase just one of these 
devices for each of these 54 institutions ranges from 1.9 to 5.4 
million dollars. Additional costs for supplies. The appreciable length 
of time needed to conduct tests with these devices is yet another 
consideration which leads the Bureau to determine that the proposed 
restriction of sources is the more reasonable solution for minimizing 
the possible introduction of contraband to the institution through 
softcover materials.
    One commenter recommended the use of dogs for intercepting drugs. 
The Bureau notes that extensive use of dogs for this purpose entails 
costs of maintenance and handling, and even so may not provide adequate 
security against the wide range of possible contraband.
    One commenter speculated that softcover material offered less 
opportunity than hardbound material for the transmission of contraband. 
In actuality, softcover material poses different opportunities for such 
transmission. The presence of numerous advertising or subscription 
inserts in a magazine complicates a search for certain types of 
contraband.
    One commenter, apparently assuming that the problem cloud be 
addressed through efficiencies in operation, recommended processing 
softcover material on alternate days. The daily volume of mail is 
sufficiently high that efficiencies effected through the suggested 
change for processing mail would be negligible.
    Commenters were also concerned that the new rule would leave 
institution mail staff with nothing to do. While the revised procedure 
should greatly reduce the likelihood that contraband will enter the 
institutions through such mail, staff must continue to monitor incoming 
publications. As one commenter noted, under the revised provision, 
Bureau staff would have to verify the legitimacy of the sender. The 
amount of time saved by the procedure can be devoted to these or other 
duties.
    There are a variety of other concerns raised by commenters 
regarding perceived inconveniences of the rule. One commenter was 
concerned that reading materials in foreign languages will be difficult 
to obtain. Other commenters state that old manuscripts, books, and 
other publications cannot be readily obtained from publishers. One 
commenter worried that inmates whose friends and families live in small 
towns will be especially burdened, because many small towns do not have 
bookstores that offer a wide variety of reading materials.
    While the bureau acknowledges that some inconveniences may result 
from this rule, book clubs do offer a wide variety of reading material, 
typically at a reduced cost, and are available to everyone regardless 
of location. Furthermore, reading material in foreign languages is 
available in most bookstores. The interests of the Bureau to maintain 
security and order outweigh the minor inconveniences that some inmates 
may experience.
    Some commenters objected to the rule, stating that it would be too 
difficult to receive certain publications which they speculated would 
not be readily available from authorized sources. The Bureau notes that 
the rule contains an exception provision which allows the Unit Manager 
to authorize the receipt of publications from other sources if the 
publication is no longer available from the publisher, book club, or 
bookstore. One commenter argued that approved exceptions by the Unit 
Manager would be difficult to obtain. The Bureau expects that the use 
of the exception provision will be adequate for the purpose, and 
further adjustments to the exception provision can be made if the need 
becomes apparent.
    One commenter argued that most softcover books, and magazines were 
purchased by family and friends at stores which do not provide mailing 
services. The Bureau believes this comment is highly speculative. 
Regardless, the Bureau contends that adequate choice exists for 
individuals purchasing softcover material (as is already the case for 
hardcover material).
    Some commenters expressed concern that inmates would not be able to 
receive books from bookstores which ship by United Parcel Service (UPS) 
because prison addresses contain post office box numbers. These 
commenters stated that UPS does not deliver to post office box 
addresses. This has not proven to be a problem in the past with the 
delivery of hardcover materials from bookstores. Bureau facilities do 
receive deliveries from UPS and other package carriers.
    One commenter assumed that books purchased from a used bookstore 
would not be acceptable. This, however, is not the case. A used 
bookstore could be the agent for mailing softcover material to an 
inmate.
    Several commenters suggest that the proposed rule is inconsistent 
with the goals of rehabilitation. They feel that the rule impairs 
inmate education and self-improvement. The Bureau disagrees. While the 
rule places limitations, for reasons of security, on how certain 
material may be obtained, it is not intended to cut off total access to 
such material. Furthermore, the Bureau itself offers educational 
programs for inmates, including a mandatory literacy program with a GED 
standard and, in certain circumstances, post-secondary education 
programs.

[[Page 77164]]

    The education department of the Bureau is responsive, to the extent 
that its budget allows, to inmate requests for library materials. The 
budget for an institution's education department covers education 
programming and library operations (including acquisitions). The 
statement by one commenter that institution libraries have no funds for 
acquisition of books is not generally true. This commenter stated that 
surplus books are donated by inmates to the institution's library and, 
based upon the assumption that fewer books would be sent into the 
institution, the amendment would result in fewer books being donated.
    One commenter is concerned that the proposed rule change will 
adversely affect the inmate's ability to receive legal materials. The 
new rule will not significantly affect the inmate's ability to receive 
legal materials. Legal reference materials are available to inmates 
through the institution's law library. Purchasing legal reference 
materials from outside sources should not be problematic because they 
may be procured in the same manner as other softcover or hardcover 
publications.
    The commenter expressed a concern that this rule would prevent his 
receiving softcover legal materials from his attorney. First, this rule 
does not govern correspondence and mail sent by attorneys to their 
clients. We have rules governing legal mail in 28 CFR 540.19. Secondly, 
this rule would only apply if an inmate receives softcover materials 
from the attorney. It would not prevent an inmate from receiving legal 
documents from his/her attorney of record or materials such as books 
from the institution's law library or directly from a publisher, book 
club or bookstore.
    The proposed conforming amendment to the regulations on inmate 
legal activities (28 CFR 543.11) which restated the policy on receipt 
of incoming publications is not longer necessary because those 
provisions were replaced by a cross-reference in an amendment published 
on January 31, 1997 (62 FR 4890).

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 Department of Justice has determined that 
this rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), Regulatory Planning and Review, and accordingly 
this rule 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. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, as required by the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule pertains to the 
correctional management of offenders committed to the custody of the 
Attorney General or the Direct of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule 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 foreign-
based companies in domestic and export markets.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Sarah Qureshi, Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First St., NW., 
Washington, DC 20534; telephone (202) 307-2105.

List of Subjects in 28 CFR Part 540

    Prisoners.

Kathleen Hawk Sawyer,
Director, Bureau of Prisons.

    Under the rulemaking authority vested in the Attorney General in 5 
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
revise 28 CFR part 540 as follows:

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 540--CONTACT WITH PERSONS IN THE COMMUNITY

    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.


    Revise paragraph (a) of Sec.  540.71 to read as follows:


Sec.  540.71  Procedures.

    (a)(1) At all Bureau institutions, an inmate may receive hardcover 
publications and newspaper only from the publisher, from a book club, 
or from a bookstore.
    (2) At medium security, high security, and administrative 
institutions, an inmate may receive softcover publications (for 
example, paperback books, newspaper, clippings, magazines, and other 
similar items) only from the publisher, from a book club, or from a 
bookstore.
    (3) At minimum security and low security institutions, an inmate 
any receive softcover publications (other than newspapers) from any 
source.
    (4) The Unit Manager may make an exception to the provisions of 
paragraphs (a)(1) and (2) of this section of the publication is no 
longer available from the publisher, book club, or bookstore. The Unit 
Manager shall require that the inmate provide written documentation 
that the publication is no longer available from these sources. The 
approval or disapproval of any request for an exception is to be 
documented, in writing, on an Authorization to Receive a Package form 
which will be used to secure the item.
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[FR Doc. 02-31310 Filed 12-11-02; 8:45 am]
BILLING CODE 4410-05-M