[Federal Register Volume 70, Number 97 (Friday, May 20, 2005)]
[Rules and Regulations]
[Pages 29189-29191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10043]



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  Federal Register / Vol. 70, No. 97 / Friday, May 20, 2005 / Rules and 
Regulations  

[[Page 29189]]



DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 501

[BOP Docket No. 1117-F]
RIN 1120-AB17


Bureau of Prisons Emergencies

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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

SUMMARY: The Bureau of Prisons (Bureau) makes this final rule to 
clarify that, when there is an institutional or system-wide Bureau 
emergency which the Director or designee considers a threat to human 
life or safety, the Director or designee may suspend the operation of 
the rules in this chapter as necessary to handle the emergency. This 
rule clarifies that the Director may suspend Bureau rules as needed in 
light of any emergency affecting the Bureau, and the Warden may do so 
to deal with emergencies at the institution level. This rule change 
clarifying the Director's authority to modify Bureau rules to handle 
emergencies is especially necessary in light of the recent terrorist 
attacks, threats to national security, threats of anthrax surrounding 
mail processing, and other events occurring on and after September 11, 
2001.

DATES: This rule is effective June 20, 2005.

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: In this document, the Bureau finalizes an 
interim final rule we published on this subject on April 16, 2003 (68 
FR 18544).
    This Final rule clarifies that, when there is an institutional or 
system-wide Bureau emergency which the Director or designee considers a 
threat to human life or safety, the Director or designee may suspend 
the operation of the rules in this chapter as necessary to handle the 
emergency. This rule change clarifying the Director's authority to 
modify Bureau rules to handle emergencies is especially necessary in 
light of the continued threats of terrorist attacks, dangers to 
national security, and other events occurring on and after September 
11, 2001.

Response to Comments

    We received a total of four comments which raised similar issues. 
We will therefore address each of the issues raised instead of 
addressing each comment separately.

Authority To Suspend Rules

    One commenter claimed that ``[t]here is no authority to suspend the 
rules.''
    This rule was promulgated on June 29, 1979 (44 FR 38244) and 
proposed on May 23, 1977 (42 FR 26334), along with several other core 
Bureau regulations. There were no amendments made to this rule after 
1979, until the interim final rule was published in 2003. When we 
proposed this rule in 1977, we referred to 18 U.S.C. 4001 and 4042 as 
the authority for the rule.
    18 U.S.C. 4001(b)(1) states that the Attorney General ``shall 
promulgate rules for the government'' of Federal penal and correctional 
institutions. Subsection (b)(2) also gives the Attorney General the 
authority to ``provide for [inmates'] proper government, discipline, 
treatment, care, rehabilitation, and reformation.'' The Attorney 
General delegates these statutory rulemaking and custodial authorities 
to the Director of the Federal Bureau of Prisons in 28 CFR 0.96(o). 18 
U.S.C. 4042(a) gives the Director of the Bureau of Prisons the 
authority to manage and regulate all Federal penal and correctional 
institutions and provide for the ``safekeeping, care and subsistence'' 
of inmates.
    The Bureau's authority to promulgate rules, together with its 
authority to provide for the care and safekeeping of inmates, gives the 
Bureau implicit authority to create a rule that allows for the 
suspension of other rules as necessary in the limited situation of an 
emergency that threatens human life or safety.

Notice to Inmates

    A commenter suggested that when rules are suspended, inmates should 
receive notice of the suspension immediately, including a description 
of the rules being suspended, a clear reason for the suspension and 
authority for suspension.
    Because the reason for suspending the rules will necessarily 
involve an emergency, it will not always be practical or possible to 
provide notice to inmates of the specific circumstances surrounding 
suspension. However, the Bureau intends that inmates will be notified 
as soon as practicable of the suspension.

Administrative Remedies

    Two commenters incorrectly assume that there is no way for an 
inmate to grieve a suspension of the rules. One commenter asked, ``If 
the rules are suspended, does BOP waive any claim to administrative 
remedies regarding any incident occurring during the suspension 
period?'' The Bureau will not waive claim to administrative remedies 
because inmates are permitted to follow the Administrative Remedy rules 
as set forth in 28 CFR part 542 to register complaints regarding 
incidents occurring during the suspension period.

Freedom of Information Act

    A commenter asked whether the notice of suspension of rules, 
provided by the Warden to the Director, would be subject to release 
under the Freedom of Information Act (FOIA). The Warden's notice to the 
Director regarding suspension of the rules will be treated as any other 
Bureau document for the purposes of FOIA. Certain FOIA exemptions may 
apply, depending on the content of the notice.

Suspension of Rules Relating to Inmate Rights

    Three commenters claimed that rule suspension would mean denial of 
Constitutional rights, such as attorney visits or other due process. 
Commenters asserted that there should never be a suspension of rules 
relating to other inmate programs or privileges, such as the Inmate 
Financial Responsibility Program, religious programs,

[[Page 29190]]

institutional lock-downs, meal service and hygiene allowances.
    The Bureau intends that any suspension would be limited to those 
rules that are directly impacted or affected by the emergency 
necessitating suspension. As stated in the rule, no Bureau rules would 
be suspended unless there is a threat to human life or safety. In no 
situation would inmates be deprived of rights in a manner that violates 
the Constitution. See Turner v. Safely, 482 U.S. 78, 107 S.Ct. 2254, 96 
L.Ed.2d 64 (1987).

30-Day Review of Suspension Is Not Frequent Enough

    One commenter opined that more safeguards are needed to ensure that 
a prisoner's rights are not violated. The ``removal or limitation of 
certain privileges * * * warrant[s] increased scrutiny. This * * * can 
be accomplished by shortening the 30 day time frame the Warden is given 
to certify to the Director that the institutional emergency still 
exist[s] and that suspension of the rules is necessary, while giving 
the prisoner an increased level of scrutiny by the Director.''
    After internal deliberation, we determined that the 30-day period 
of review and reporting to the Director regarding suspensions of rules 
is the best time frame alternative. Requiring the Warden to report more 
frequently than every 30 days would impose an obligation on the Warden 
and institution staff when their efforts should be on removing the 
emergency conditions which necessitated suspension of the rules in the 
first place.
    The commenter posits that a shorter time frame for reporting would 
result in an ``increased level of scrutiny by the Director.'' However, 
if an institutional or system-wide emergency arises causing suspension 
of rules, the Director and Bureau executives would necessarily be in 
constant contact with staff at any locations where rules are suspended, 
working to remove the emergency. The Bureau's ``level of scrutiny'' 
would already be heightened.
    Further, as stated earlier, the Bureau intends that any suspension 
would be limited to those rules that are directly impacted or affected 
by the emergency necessitating suspension. To the extent that 
suspension is necessary to handle an emergency situation, prisoner's 
rights would not be compromised.

Director Should Report to the Attorney General

    One commenter felt that suspension of the rules ``should be 
reported to the Attorney General, subject to his review, in the same 
format as outlined [for the Warden to report to the Director].''
    The Attorney General has delegated to the Director of the Bureau of 
Prisons the authority to promulgate rules ``governing the control and 
management of Federal penal and correctional institutions and providing 
for the classification, government, discipline, treatment, care, 
rehabilitation, and reformation of inmates confined therein,'' (28 CFR 
0.96), as further authorized by 18 U.S.C. 4001, 4041, and 4042. The 
Attorney General does not require the Director therefore to report 
suspension of the rules because the Director has been given authority 
to oversee and monitor such suspension.

Report Criteria

    Finally, one commenter suggested that when the Warden reports a 
suspension to the Director, the Warden should be required to report 
``how long the suspension of the rules will last and what criteria must 
be fulfilled in order to end the suspension. This would provide 
interested parties with an idea of how and when to expect the 
restoration of the rules. Requiring this component in a report would 
help inmates and their families to understand why rules have been 
suspended and would enhance the policy process by providing defined 
criteria for resumption of normal operations.''
    We agree and therefore have added the two requested criteria to the 
rule in Sec.  501.1(b)(1), subparagraphs (iii) and (iv). Under the 
revised rule, if the Warden suspends operation of the rules, the Warden 
must, within 24 hours of the suspension or as soon as practicable, 
notify the Director by providing written documentation which not only 
describes the emergency and gives reasons why suspension of rules is 
necessary, but also estimates how long the suspension will last and 
describes criteria which would allow normal rules application to 
resume.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB.

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, under Executive Order 13132, 
we determine 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, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by 
approving it certifies that it 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 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 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.

List of Subjects in 28 CFR Part 501

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
Under the rulemaking authority vested in the Attorney General in 5 
U.S.C 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons, in 28 CFR 0.96, we amend 28 CFR part 501 as follows.

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 501--SCOPE OF RULES

0
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

[[Page 29191]]

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.


0
2. Revise Sec.  501.1 to read as follows:

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 501--SCOPE OF RULES


Sec.  501.1  Bureau of Prisons emergencies.

    (a) Suspension of rules during an emergency. The Director of the 
Bureau of Prisons (Bureau) may suspend operation of the rules in this 
chapter as necessary to handle an institutional emergency or an 
emergency affecting the Bureau. When there is an institutional 
emergency which the Director or Warden considers a threat to human life 
or safety, the Director or Warden may suspend the operation of the 
rules in this chapter as necessary to handle the emergency.
    (b) Responsibilities of the Warden.
    (1) Notifying the Director. If the Warden suspends operation of the 
rules, the Warden must, within 24 hours of the suspension or as soon as 
practicable, notify the Director by providing written documentation 
which:
    (i) Describes the institutional emergency that threatens human life 
or safety;
    (ii) Sets forth reasons why suspension of the rules is necessary to 
handle the institutional emergency;
    (iii) Estimates how long suspension of the rules will last; and
    (iv) Describes criteria which would allow normal rules application 
to resume.
    (2) Submitting certification to Director of continuing emergency. 
30 days after the Warden suspends operation of the rules, and every 30 
days thereafter, the Warden must submit to the Director written 
certification that an institutional emergency threatening human life or 
safety and warranting suspension of the rules continues to exist. If 
the Warden does not submit this certification to the Director, or if 
the Director so orders at any time, the suspension of the rules will 
cease.

[FR Doc. 05-10043 Filed 5-19-05; 8:45 am]
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