[Federal Register Volume 77, Number 64 (Tuesday, April 3, 2012)]
[Rules and Regulations]
[Pages 19932-19933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7971]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 540
[BOP-1149-F]
RIN 1120-AB49
Inmate Communication With News Media: Removal of Byline
Regulations
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes an
interim rule published April 23, 2010, regarding inmate contact with
the community which deleted two previous Bureau regulations that
prohibited inmates from publishing under a byline, due to a recent
court ruling invalidating Bureau regulation language containing this
prohibition.
DATES: This rule is effective on May 3, 2012.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION: In this document, the Bureau of Prisons
(Bureau) finalizes an interim rule regarding inmate contact with the
community which deleted two previous Bureau regulations that prohibited
inmates from publishing under a byline, due to a recent court ruling
invalidating Bureau regulation language containing this prohibition.
The interim rule was published on April 23, 2010 (75 FR 21163), and a
technical correction (correcting the effective date of the interim rule
to May 7, 2010) was published on May 7, 2010 (75 FR 25110). We received
one comment on the interim rule, which we address below.
The commenter first objected to the Bureau's interim rule as having
been promulgated incorrectly under the Administrative Procedure Act
(APA) (5 U.S.C. 553, et seq.). The commenter stated that the Bureau did
not articulate ``good cause'' under the APA to forego normal notice-
and-comment rulemaking procedures.
In response, the Bureau explained its ``good cause'' in the interim
rule. The Bureau stated that the APA (5 U.S.C. Sec. 553(b)(3)(B))
allows exceptions to notice-and-comment rulemaking ``when the agency
for good cause finds * * * that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.'' The
Bureau indicated it would be impracticable to invite public comment on
the result of a court order invalidating a regulatory provision because
prompt implementation of the court order was necessary to afford
inmates the benefit of the court's decision and to protect the Bureau
from liability arising from potential application of an invalidated
regulation.
The commenter states that it was not enough for the Bureau to
recognize that the court in Jordan v. Pugh, 504 F.Supp.2d 1109 (D.
Colo. 2007), issued a decision invalidating the byline language of
Sec. 540.20(b). In the interim rule, the Bureau stated that the court
found that not all inmate publishing under a byline jeopardizes
security, and overruled the byline portion of the provision as facially
overbroad for prohibiting all such activity. The commenter posits that
the Bureau should have mentioned the ultimate holding in that case. We
therefore do so below. The Jordan court held as follows:
Court concludes that the Byline Regulation violates the First
Amendment rights of Mr. Jordan, other inmates in federal
institutions, and the press * * *
It is therefore ordered that judgment shall enter in favor of
the Plaintiff, Mark Jordan, and against the Defendants, Michael V.
Pugh, J. York, R.E. Derr, B. Sellers, and Stanley Rowlett, in their
official capacities:
(1) Declaring that the language of 28 CFR 540.20(b), ``The
inmate may not * * * publish under a byline'', violates the First
Amendment to the United States Constitution; and
(2) Enjoining the Federal Bureau of Prisons from punishing any
inmate for violation of 28 CFR 540.20(b)'s provision that: ``The
inmate may not * * * publish under a byline.''
Id. at 1126.
In so holding, the court invalidated 28 CFR 540.20(b)'s ``byline''
language, a fact that the Bureau indicated in the preamble to the
interim rule. The commenter states that ``rulemaking prompted by a
significant court ruling that holds that a regulation `violates the
First Amendment rights' of the press deserves the full notice-and-
comment process specified by law, so that the public may review the
Court's ruling, evaluate the Bureau's response, and comment.'' The
commenter cites to no authority for this statement, and does not take
into consideration that the public was able to review the decision when
it was published in 2007. The Bureau's response is simple--remove the
invalidated regulations. The public was given the opportunity to
comment on the Bureau's action during the comment period for the
interim rule.
The commenter also rejects the Bureau's statement that the interim
rule was necessary to protect the Bureau from liability arising from
potential application of an invalidated regulation because the interim
rule was published in 2010 whereas the decision was published in 2007.
The commenter states that the Bureau should have issued a notice to
Bureau staff in 2007 to not enforce the invalidated regulations. The
Bureau did, in fact, issue mandatory guidance to its staff on November
27, 2007, which stated that the Bureau
is revising these regulations to remove the byline provision
invalidated by the court. Until that occurs, however, an inmate's
publishing under a byline, by itself, can no longer support
disciplinary action * * * [W]hile the court expressly limited its
holding only to the byline language of Sec. 540.20(b), neither
should Bureau staff discipline inmates for publishing under a byline
under the identical provision in Sec. 540.62(d).
The commenter then argues that the provision in the rule stating
that inmates may not act as reporters violates the First Amendment of
the U.S. Constitution. We note that this provision was unchanged by the
interim rule. However, the commenter indicates that ``[b]y repealing
the `byline language' and leaving the prohibition on acting as a
reporter, the Bureau has not correctly responded to the holding of the
Jordan case.''
We note that the holding in Jordan was limited to invalidation of
the ``byline'' language, not the ``reporter'' language. In Jordan, the
court referred to a memorandum issued by the Bureau's Office of General
Counsel on October 20, 2006, in which the Bureau clarified to staff
that ``acting as a reporter'' means doing so ``on a regular or repeated
basis,'' as opposed to a one-time publication under a byline. This is
an important distinction because regular, repeated, compensated
activity as a reporter signifies that the inmate is conducting a
business, which is prohibited by the Bureau's inmate discipline
regulations. Prevention of conducting a business was recognized by the
Jordan court as a ``legitimate penological objective.'' Id. at 1123.
[[Page 19933]]
Also, the court noted that the plaintiff, a federal inmate, had
``never acted, requested to act or has been requested to act as a
reporter,'' and therefore chose to restrict its decision to the
``byline'' language without addressing the ``reporter'' language. In
footnote 25, the court stated that the reporter ``portion of the
regulation is not before the Court.'' Further, when the Bureau
attempted to justify the ``byline'' language by indicating that
publishing under a byline amounts to unauthorized conducting of a
business, the court stated as follows:
[T]his argument would carry more weight if the Court were
addressing the portion of the Byline Regulation prohibiting inmates
from acting as reporters. The role of a reporter envisions a
relationship between the news media and the inmate, for which the
inmate is compensated. But the scope of this lawsuit does not
include the reporter portion of the regulation, and the danger of an
inmate conducting a business simply because the inmate publishes a
writing under a byline in the news media is much more remote.
Id. at 1123.
The court's recognition of the distinction between ``publishing
under a byline'' and ``acting as a reporter'' is clear from the
language of the Jordan opinion. Likewise, the court's recognition of
this distinction is clear in its holding invalidating only the
``byline'' portion of the regulation but not the ``reporter'' portion.
We therefore decline to remove the provision in the regulation
prohibiting acting as a reporter.
For the aforementioned reasons, the interim rule published on April
23, 2010 (75 FR 21163), is hereby finalized without change.
Executive Order 12866
This regulation does not fall within a category of actions that the
Office of Management and Budget (OMB) has determined to constitute
``significant regulatory actions'' under section 3(f) of Executive
Order 12866 and, accordingly, it was not reviewed by OMB.
The Bureau of Prisons has assessed the costs and benefits of this
regulation as required by Executive Order 12866 Section 1(b)(6) and has
made a reasoned determination that the benefits of this regulation
justify its costs. There will be no new costs associated with this
regulation.
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 regulation 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 regulation pertains to the correctional management of
offenders and immigration detainees 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 regulation 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 regulation is not a major rule as defined by Sec. 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This
regulation 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 540
Prisoners.
For the aforementioned reasons, the interim rule published on April
23, 2010 (75 FR 21163), is hereby finalized without change.
Charles E. Samuels, Jr.,
Director, Bureau of Prisons.
[FR Doc. 2012-7971 Filed 4-2-12; 8:45 am]
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