20 June 1997
Source: http://www.access.gpo.gov/su_docs/aces/aces140.html

    [Federal Register: June 20, 1997 (Volume 62, Number 119)]
    [Rules and Regulations]
    [Page 33729-33732]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]
    [DOCID:fr20jn97-16]

    [[Page 33729]]
    _______________________________________________________________________

    Part IV

    Department of Justice
    _______________________________________________________________________

    Bureau of Prisons
    _______________________________________________________________________

    28 CFR Part 501

    Scope of Rules: National Security; Prevention of Acts of Violence and
    Terrorism; Rule

    [[Page 33730]]

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    DEPARTMENT OF JUSTICE

    Bureau of Prisons

    28 CFR Part 501

    [BOP-1046-F; BOP-1059-F]
    RIN 1120-AA47; RIN 1120-AA54

    Scope of Rules: National Security; Prevention of Acts of Violence
    and Terrorism

    AGENCY: Bureau of Prisons, Justice.

    ACTION: Final rule.

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    SUMMARY: This document finalizes Bureau of Prisons interim rules on
    institutional management with respect to special administrative
    measures that may be necessary to prevent the disclosure of classified
    information that could endanger national security and to prevent acts
    of violence and terrorism, either of which may be caused by contacts
    with certain inmates. The affected inmate must be notified in writing
    as promptly as possible of the restrictions to be imposed. Restrictions
    may be imposed initially for up to 120 days, and may be extended in
    further increments of 120 days only upon additional written
    notification that the circumstances identified in the original
    certification continue to exist.

    EFFECTIVE DATE: This rule shall take effect June 20, 1997.

    ADDRESSES: Rules Unit, 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 (``Bureau'') is
    finalizing its interim regulations on the correctional management of
    inmates whose contacts with other persons present the potential for
    disclosure of classified information that could endanger national
    security or for acts of violence and terrorism. An interim rule on
    preventing the disclosure of classified information was published in
    the Federal Register on October 13, 1995 (60 FR 53490). No public
    comment was received, and the interim rule is adopted, with only minor
    changes. In the second sentence of section 501.2(a), the word
    ``ordinarily'' is added, and the word ``housing'' is substituted for
    ``placing''. This sentence also adds the phrase, ``interviews with
    representatives of the news media'' as another example where privileges
    may be limited. The existing rule contained a listing that said, ``* *
    * limiting certain privileges, including, but not limited to, * * *''
    In section 501.2(b), the phrase, ``as soon as practicable'' is
    substituted for ``as promptly as possible.'' None of these revisions
    change the intent of the rule.
        An interim rule on preventing acts of violence and terrorism was
    published in the Federal Register on May 17, 1996 (61 FR 25120). Public
    comment was received on this rule and is responded to below.
        Comments generally expressed concern that the regulation is
    violative of a person's First Amendment rights, with one commenter
    stating that the First Amendment ``prohibits governmental interference
    with freedom of speech and freedom of press.'' The commenter states
    that any such restriction must be based on substantial and controlling
    state interest and that the restriction be the least drastic method of
    accomplishing the state goal. The commenter believes this restriction
    may not pass the above test.
        In response, the Bureau of Prisons notes that the U.S. Supreme
    Court in Pell v. Procunier, 417 U.S. 817, 822, 823 (1974), held that
    ``* * * a prison inmate retains those First Amendment rights that are
    not inconsistent with his status as a prisoner or with the legitimate
    penological objectives of the corrections system * * * An important
    function of the corrections system is the deterrence of crime * * *
    Finally, central to all other corrections goals is the institutional
    consideration of internal security within the corrections facilities
    themselves.'' We believe this regulation, with its concern of security
    and protection of the public, meets this test. Nor do we agree with the
    commenter's suggestion that the rule is unnecessary since it has not
    been needed in the past, and, the commenter believes, ``no death or
    injury has resulted from a federal prisoner[']s communication with
    unincarcerated individuals.'' It is not necessary to experience such an
    incident before regulations can be implemented to address the need.
        Other commenters acknowledge that the regulation was promulgated in
    order to protect the safety of government officials and the general
    public, and, as stated by one of the commenters, do ``not dispute the
    legitimacy of the goals underlying the interim regulations.''
    Notwithstanding this acknowledgment, these commenters also addressed
    the First Amendment issue. They viewed the regulation as overbroad, as
    more expansive than necessary, and as possibly indiscriminately barring
    expression of speech that does not pose any threat to Federal officials
    or those outside of prison. Other comments said that the regulation may
    prevent the press from fully reporting on the very people who ``may
    threaten society the most'', and that the regulation forecloses other
    avenues of obtaining information; that the ``complete ban suggested by
    the regulation * * * is legally impermissible'; and that the regulation
    is imposed ``without sufficient checks and balances to challenge
    government action.''
        As noted by one commenter, the U.S. Supreme Court has held that the
    press has no constitutional right of access to prisons or their inmates
    beyond that afforded the general public. See Pell v. Procunier, 417
    U.S. 817 (1974) and Saxbe v. Washington Post Co., 417 U.S. 843 (1974).
    In this context, the Bureau of Prisons disagrees with the broad scope
    of comment that the public is the ultimate decider of what it wants to
    hear from the inmates. Where the issue is prevention of acts of
    violence and terrorism, it is appropriate for government officials, at
    the highest level and acting on the basis of their intelligence
    information, to impose restrictions on an inmate's public dissemination
    of information that may cause such acts. The rule, however, in no way
    is intended to prevent inmates, as suggested by commenters, from
    communicating about the prison system. In one sense, the government
    officials, as are the press, are operating on behalf of the public. As
    noted below, there are means by which disagreements can be addressed.
        Further, as noted at the time of the interim rule's publication,
    the application of these measures is likely to affect only a minute
    portion of the inmate population; those inmates for whom there is an
    identified concern by a government official of the highest level that
    the inmate's communications with other persons could serve as an
    instrumentality for acts of violence and terrorism. These measures will
    be subject to strict controls, as their implementation may occur only
    upon written notification by the Attorney General, or at his or her
    direction, by the head of a federal law enforcement agency or the head
    of a member agency of the United States intelligence community, that
    there is a substantial risk that a prisoner's communications or
    contacts with persons could result in death or serious bodily injury to
    persons, or substantial damage to property that would entail the risk
    of death or serious bodily injury to persons. The Bureau of Prisons
    finds this standard consistent with the commenter who suggests, ``At a
    minimum, the standards for restrictive inmate privileges such as those
    described in the regulation should be

    [[Page 33731]]

    that there is clear and convincing evidence of a substantial risk to
    death or serious bodily injury.''
        The regulation also addresses commenters' concern that the
    regulation is overbroad, and that it may indiscriminately bar
    expression of speech. It is not the intention of the Bureau of Prisons
    that the restrictions imposed in these special cases routinely include
    complete curtailment of privileges, including all means of access, but
    rather the regulation is directed to allowing the imposition of
    appropriate limitations, as needed to prevent acts of violence and
    terrorism. For example, it is possible, in response to one comment,
    that an inmate subject to the provisions of this regulation, would be
    allowed to be interviewed by the media, but with the necessary
    conditions imposed to meet what one commenter refers to as ``the
    legitimacy of the goals underlying the interim regulations.''
        In addition, an inmate upon whom these special restrictions are
    imposed is entitled to notification in writing of the imposed
    restrictions and the basis for the restrictions. This ensures the
    inmate is aware of the rule's implementation. The affected inmate may
    appeal imposition of restrictions ordered under this section through
    the Bureau's Administrative Remedy Program, 28 CFR part 542.
        A commenter correctly points out that the rule does not provide a
    formal administrative measure by which a non-inmate may challenge the
    restrictions on the inmate's privileges. Such an administrative
    mechanism is not considered necessary as the inmate is notified of the
    reasons and of the means to appeal the decision. Certainly, a non-
    inmate may contact the Bureau of Prisons, with the extent of
    information provided governed by the security concerns involved and the
    privacy rights of the inmate. Further, this regulation poses no
    restriction on an individual's right to initiate judicial action.
        Contrary to one comment, the regulation as promulgated fully
    conforms to First Amendment requirements and provides an inmate with
    due process. The inmate is notified of any restrictions imposed and is
    given the opportunity to appeal those restrictions. It appears the
    commenter may believe the regulation allows an inmate to be placed in
    disciplinary segregation status (commenter refers to ``placing a
    prisoner in segregation without a due process hearing.'') That is not
    the case, as a disciplinary segregation placement would occur not on
    the basis of this regulation, but only as a result of an inmate being
    found, after a limited due process hearing, to have committed an
    infraction of an institution's prohibited act.
        As previously noted, commenters' concerns appear to relate more to
    a misapplication of the rule rather than to the purpose of the rule.
    For example, one commenter stated there was no dispute of the
    legitimacy of the goals underlying the interim regulations, but saw the
    regulation as overbroad. Other comments expressed concern over the
    potential for a lack of accountability and/or abuse, including abuse by
    government officials who wish to deny the media access for illegitimate
    reasons, such as ``content-based suppression of speech.'' The Bureau of
    Prisons regulation is promulgated to alleviate such concerns. The rule
    provisions for implementation only at the direction of the Attorney
    General, or at her designation, the head of a federal law enforcement
    agency or head of a member agency of the United States intelligence
    community, coupled with the provision limiting its provisions to 120
    days (unless specifically renewed) help ensure against such abuse. The
    Department's Standards of Professional Conduct also serve as a
    constraint. These provisions, in conjunction with other aspects
    discussed above, such as the inmate's opportunity to file an
    administrative appeal and the rule's intent to ordinarily not curtail
    all access, serve as ``checks and balances'' on the addressing of this
    very serious issue of preventing violence and acts of terrorism.
        It is unclear as to what is being requested by a comment that the
    rule be revised to ``prohibit the unilateral involvement of federal law
    enforcement and intelligence agencies in access decisions.'' The scope
    of this rule is to prevent acts of violence and terrorism. The federal
    law enforcement and intelligence agencies are charged with this
    responsibility. The rule, as drafted, recognizes this aspect but
    carries constraints, such as approval by the Attorney General, re-
    approval every 120 days and the inmate's right to appeal, to help
    ensure that the rule is applied appropriately. The Bureau of Prisons is
    not aware of any further revision that may be made to more effectively
    achieve the intent of the rule without increasing the potential for
    acts of violence and terrorism.
        A commenter suggested that the interim rule be amended to create
    guidelines specifying the referral of suspicious mails and
    communications to the appropriate investigatory agency. This comment is
    outside the scope of the current rule. However, it is an issue that the
    Bureau of Prisons is examining with respect to its internal procedures.
        A commenter believes that the Bureau's rule sets a ``dangerous
    example for the state prison systems, which may be less appreciative of
    the constitutional restrictions on banning speech, and therefore may be
    less exacting.'' In response, the Bureau notes that its rule is limited
    to Federal prisons, and does not directly affect the state prison
    systems. The Bureau fully expects any state that would feel it
    appropriate to initiate such a procedure would do so with a full
    awareness of the applicable restrictions.
        The one change made to this interim rule is in the first sentence
    of section 501.3(a), where the word ``measures'' is substituted for the
    word ``procedures.'' The intent of the section is unchanged.
        Members of the public may submit comments concerning this rule by
    writing to the previously cited address. These comments will be
    considered but will receive no further response in the Federal
    Register.
        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
    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. This rule will not have
    substantial direct effects on the states, on the relationship between
    the national government and the states, or the distribution of power
    and responsibilities among the various levels of government. Therefore,
    in accordance with section 6 of E.O. 12612, it is determined that this
    rule does not have sufficient federalism implications to warrant the
    preparation of a Federalism Assessment.

    List of Subjects in 28 CFR Part 501

        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 501 in

    [[Page 33732]]

    subchapter A of 28 CFR, chapter V is amended as set forth below:

    SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

    PART 501--SCOPE OF RULES

        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 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; 28
    CFR 0.95-0.99.

        2. Sections 501.2 and 501.3 are revised to read as follows:

    Sec. 501.2  National security cases.

        (a) Upon direction of the Attorney General, the Director, Bureau of
    Prisons, may authorize the Warden to implement special administrative
    measures that are reasonably necessary to prevent disclosure of
    classified information upon written certification to the Attorney
    General by the head of a member agency of the United States
    intelligence community that the unauthorized disclosure of such
    information would pose a threat to the national security and that there
    is a danger that the inmate will disclose such information. These
    special administrative measures ordinarily may include housing the
    inmate in administrative detention and/or limiting certain privileges,
    including, but not limited to, correspondence, visiting, interviews
    with representatives of the news media, and use of the telephone, as is
    reasonably necessary to prevent the disclosure of classified
    information. The authority of the Director under this paragraph may not
    be delegated below the level of Acting Director.
        (b) Designated staff shall provide to the affected inmate, as soon
    as practicable, written notification of the restrictions imposed and
    the basis for these restrictions. The notice's statement as to the
    basis may be limited in the interest of prison security or safety or
    national security. The inmate shall sign for and receive a copy of the
    notification.
        (c) Initial placement of an inmate in administrative detention and/
    or any limitation of the inmate's privileges in accordance with
    paragraph (a) of this section may be imposed for up to 120 days.
    Special restrictions imposed in accordance with paragraph (a) of this
    section may be extended thereafter by the Director, Bureau of Prisons,
    in 120-day increments only upon receipt by the Attorney General of
    additional written certification from the head of a member agency of
    the United States intelligence community, that the circumstances
    identified in the original certification continue to exist. The
    authority of the Director under this paragraph may not be delegated
    below the level of Acting Director.
        (d) The affected inmate may seek review of any special restrictions
    imposed in accordance with paragraph (a) of this section through the
    Administrative Remedy Program, 28 CFR part 542.

    Sec. 501.3  Prevention of acts of violence and terrorism.

        (a) Upon direction of the Attorney General, the Director, Bureau of
    Prisons, may authorize the Warden to implement special administrative
    measures that are reasonably necessary to protect persons against the
    risk of death or serious bodily injury. These procedures may be
    implemented upon written notification to the Director, Bureau of
    Prisons, by the Attorney General or, at the Attorney General's
    direction, by the head of a federal law enforcement agency, or the head
    of a member agency of the United States intelligence community, that
    there is a substantial risk that a prisoner's communications or
    contacts with persons could result in death or serious bodily injury to
    persons, or substantial damage to property that would entail the risk
    of death or serious bodily injury to persons. These special
    administrative measures ordinarily may include housing the inmate in
    administrative detention and/or limiting certain privileges, including,
    but not limited to, correspondence, visiting, interviews with
    representatives of the news media, and use of the telephone, as is
    reasonably necessary to protect persons against the risk of acts of
    violence or terrorism. The authority of the Director under this
    paragraph may not be delegated below the level of Acting Director.
        (b) Designated staff shall provide to the affected inmate, as soon
    as practicable, written notification of the restrictions imposed and
    the basis for these restrictions. The notice's statement as to the
    basis may be limited in the interest of prison security or safety or to
    protect against acts of violence or terrorism. The inmate shall sign
    for and receive a copy of the notification.
        (c) Initial placement of an inmate in administrative detention and/
    or any limitation of the inmate's privileges in accordance with
    paragraph (a) of this section may be imposed for up to 120 days.
    Special restrictions imposed in accordance with paragraph (a) of this
    section may be extended thereafter by the Director, Bureau of Prisons,
    in 120-day increments upon receipt by the Director of additional
    written notification from the Attorney General, or, at the Attorney
    General's direction, from the head of a federal law enforcement agency,
    or the head of a member agency of the United States intelligence
    community, that the circumstances identified in the original
    notification continue to exist. The authority of the Director under
    this paragraph may not be delegated below the level of Acting Director.
        (d) The affected inmate may seek review of any special restrictions
    imposed in accordance with paragraph (a) of this section through the
    Administrative Remedy Program, 28 CFR part 542.

    [FR Doc. 97-16208 Filed 6-19-97; 8:45 am]
    BILLING CODE 4410-05-P