[Federal Register Volume 67, Number 243 (Wednesday, December 18, 2002)]
[Rules and Regulations]
[Pages 77425-77427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31660]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1064-F]
RIN 1120-AA59


Incoming Publications: Nudity and Sexually Explicit Material or 
Information

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, we finalize our interim final rule which 
implemented a statutory provision prohibiting the Bureau of Prisons 
(Bureau) from using appropriated funds to ``distribute or make 
available any commercially published information or material'' that 
features nudity or is sexually explicit. We now publish this rule as a 
final rule and further clarify that ``commercially published 
information or material'' includes photographs or other pictorial 
depictions.

DATES: This rule is effective on December 18, 2002.

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: 

History of This Rule

    The Fiscal Year 1997 Omnibus Budget Act (Pub. L. 104-208) first 
required that we use no funds available to the Bureau ``to distribute 
or make available any commercially published information or material to 
a prisoner when it is made known to [us] that such information or 
material is sexually explicit or features nudity.''
    On November 6, 1996, we published procedures implementing this 
provision in the Act as an interim final rule (61 FR 57568). The rule, 
effective December 1, 1996, became 28 CFR 540.70--540.72.
    Within the two months after publishing this rule, we received six 
comments from individuals challenging the constitutionality of the 
statutory provisions underlying these rules on First Amendment grounds. 
The commenters generally argued that denying inmates access to 
information or material that is sexually explicit or features nudity 
violated their constitutional right to freedom of speech and 
communication.
    Before we could respond to these comments, a group of inmates and 
publishers promptly challenged the constitutionality of the policy 
implemented by these rules in the case of Amatel v. Reno, 975 F. Supp. 
365 (D.D.C. 1997). On August 12, 1997, the court in Amatel issued a 
nationwide preliminary injunction prohibiting us from using these 
procedures. We then suspended application of these rules.
    On September 15, 1998, the U.S. Court of Appeals for the District 
of Columbia Circuit reversed the district court's preliminary 
injunction. Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) (rehearing en 
banc denied Dec. 23, 1998). They further appealed to the U.S. Supreme 
Court, which denied certiorari on June 24, 1999, Amatel v. Reno, 119 S. 
Ct. 2392 (1999).
    Amatel upheld the apparent constitutionality of this statutory 
provision. By lifting the injunction, the U.S. Court of Appeals in 
Amatel allowed us to reimplement the policy mandated by statute through 
these rules.

What We Are Doing Now

    In this rule, we finalize 28 CFR 540.70 through 540.72, as 
originally published in 1996 (61 FR 57568). We also amend Sec.  
540.72(b)(1) to clarify that ``commercially published information or 
material'' includes photographs or other pictorial depictions in 
response to a recent trend towards receipt of such prohibited 
materials. These photographs often arrive as commercially published 
information or material and are, therefore, prohibited by this rule. 
Although our previous definition of commercially published information 
or material did not explicitly include photographs or pictorial 
depictions, that prohibition is certainly implicit.
    The Fiscal Year 1997 Omnibus Budget Act (Pub. L. 104-208) (1997 
Budget Act)

[[Page 77426]]

prohibited us from using authorized funds to ``distribute or make 
available any commercially published information or material'' 
(emphasis added) if it is ``sexually explicit or features nudity''. 
This effectively requires us to prohibit dissemination in our 
institutions of this type of material. We do not have the discretion to 
allow inmates to receive the information or material that the statute 
prohibits. We therefore interpret this provision to prohibit mailroom 
intake processing of this type of material.
    The prohibition in the 1997 Budget Act was later repeated in 
section 615 of the Fiscal Year 2000 Omnibus Budget Act (Pub. L. 106-
113) and section 614 of the D.C. Appropriations Act for Fiscal Year 
2001 (Pub. L. 106-553). Currently, the prohibition is found in section 
614 of the Department of Commerce, Justice, and State, The Judiciary 
and Related Agencies Appropriations Act 2002 (P.L. 107-77)(2002 Budget 
Act). We therefore clarify in our regulation that ``commercially 
published information or material'' includes photographs or pictorial 
depictions.
    Although photographs and pictorial depictions that are ``sexually 
explicit'' or feature nudity are implicitly banned by the 
aforementioned statutory prohibitions, this clarification is necessary 
because inmates and members of the public misread our previous rule, 
which did not explicitly mention photographs and pictorial depictions. 
A recent trend involves inmates receiving sexually explicit or nude 
photographs from apparently commercial photography studios or from 
individual members of the public attempting to set up a form of paid 
correspondence through which inmates would buy photographs that were 
sexually explicit or featured nudity.
    Inmates and members of the general public have the misapprehension 
that this type of ``paid correspondence'' (soliciting payment for 
photographs that are sexually explicit or feature nudity) is not 
prohibited by either (1) the general restriction in 28 CFR 540.12(a) on 
correspondence that threatens the security, discipline and good order 
an institution; or (2) our rule in 28 CFR 540.72(b)(1) defining 
``commercially published information or material'' prohibited under 
section 614 of the 2002 Budget Act.
    The general restriction in 28 CFR 540.12(a), which allows Wardens 
to ``establish and exercise controls to protect individuals, and the 
security, discipline, and good order of the institution'' encompasses 
the Bureau's discretion to reject photographs featuring nudity and 
explicit sexuality from non-commercial sources, such as an inmate's 
wife or girlfriend. Such personal photographs typically cause 
disciplinary problems among inmates and compromise institution security 
and good order. However, the ``paid correspondence'' incidents 
described above could be viewed as commercial correspondence which, 
arguably, could be thought beyond the reach of the Warden's controls on 
personal correspondence.
    Likewise, it was argued that the restrictions on commercial 
correspondence did not apply to this form of ``paid correspondence'' 
because it was not explicitly encompassed in the previous rule. 28 CFR 
540.72(b)(1) defined ``commercially published information or material'' 
under the statutory prohibition as: ``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.''
    This definition represented the Bureau's efforts to encompass all 
``material'' featuring nudity or explicit sexuality contemplated by the 
statute. Although we believed our definition of commercially published 
information or material was sufficiently inclusive, inmates and members 
of the public have misinterpreted this definition as not applicable to 
photographs or pictorial depictions that are sexually explicit or 
featuring nudity. This rule change is therefore necessary to explicitly 
clarify that the statutory prohibition in section 614 of the 2002 
Budget Act of all ``commercially published information or material'' 
that is ``sexually explicit or features nudity'' includes photographs 
and pictorial depictions. We intend this change to eliminate current 
misunderstanding of the statute by inmates and the general public.
    Inmates are allowed to possess material that is ``sexually explicit 
or features nudity'' if that material was in their possession before 
this interim final rule became effective on December 1, 1996. Other 
regulations prohibit inmates from receiving sexually explicit materials 
during visits or through personal mail. Similarly, inmates may not 
receive, through the mail or otherwise, any materials which threaten 
the safety, security, good order of the institution, or violates 
criminal laws. Such materials are prohibited by the these rules, and 
the rules on inmate correspondence, part 540, subpart B.

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 of the Bureau of Prisons 
has determined that this rule is not a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), and accordingly 
this rule has not 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 rule 
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 rule 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.

Unfunded Mandates Reform Act of 1995

    This rule 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 rule is not a major rule as defined by section 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-

[[Page 77427]]

based companies in domestic and export markets.

Plain Language Instructions

    We want to make Bureau documents easier to read and understand. If 
you can suggest how to improve the clarity of these regulations, call 
or write to Sarah Qureshi at the address or telephone number listed 
above.

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 
amend 28 CFR part 540 as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 540--CONTACT WITH PERSONS IN THE COMMUNITY

    1. The authority citation for 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.


Sec.  540.72  [Amended]

    2. Amend Sec.  540.72 by adding ``photograph or other pictorial 
depiction,'' before ``or similar document'' in paragraph (b)(1).

[FR Doc. 02-31660 Filed 12-17-02; 8:45 am]
BILLING CODE 4410-05-P