[Federal Register: June 20, 1997 (Volume 62, Number 119)]
[Rules and Regulations]
[Page 33729-33732]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 501
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]
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