[Federal Register Volume 75, Number 55 (Tuesday, March 23, 2010)]
[Proposed Rules]
[Pages 13705-13707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6288]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 513
[BOP Docket No. 1157-P]
RIN 1120-AB57
Inmate Access to Inmate Central File: PSRs and SORs
AGENCY: Bureau of Prisons, Justice.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Prisons (Bureau) proposes to amend regulations
regarding inmate access to Inmate Central File materials to prohibit
sentenced inmates incarcerated in Bureau facilities, including those in
contract facilities or community confinement, from possessing their
Pre-Sentence Investigation Reports (PSRs), Statements of Reasons
(SORs), or other similar sentencing documents from criminal judgments.
Such inmates under this prohibition will continue to be permitted to
review their PSRs and SORs.
DATES: Comments due by May 24, 2010.
ADDRESSES: Comments should be submitted to the Rules Unit, Office of
General Counsel, Bureau of Prisons, 320 First Street, NW., Washington,
DC 20534. You may view an electronic version of this rule at http://www.regulations.gov. You may also comment via the Internet by using the
http://www.regulations.gov comment form for this regulation. When
submitting comments electronically you must include the BOP Docket No.
in the subject box.
[[Page 13706]]
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and are available for public inspection online at http://www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
contains so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
Proposed Rule
The Bureau proposes to amend its regulation on inmate access to
Inmate Central File documents (28 CFR 513.40). We published the current
regulation in the Federal Register on December 9, 1996 (61 FR 64950).
This proposed rule seeks to prohibit sentenced inmates incarcerated in
Bureau facilities, including those in contract facilities or in
community confinement, from possessing their Pre-Sentence Investigation
Reports (PSRs), Statements of Reasons (SORs), or other similar
sentencing documents from criminal judgments. Such inmates under this
prohibition will be permitted to review their PSRs, SORs, or other
similar documents. Further, pretrial inmates in Bureau facilities,
including those in contract facilities or in community confinement, may
possess and review these documents in preparation for sentencing.
At present, inmates incarcerated in Bureau facilities, including
those in contract facilities or in community confinement, may make a
request at their facility for an opportunity to review and obtain
copies of these documents. Under this rule, such inmates may review
these documents and take notes, but are prohibited from possessing
copies of these documents. This change addresses the problem of inmates
pressuring other inmates for copies of their PSRs, SORs, or other
similar documents, to learn if they are informants, gang members, have
financial resources, etc. This change will help the Bureau better
protect the safety and security of its institutions, inmates, staff,
and the public.
The SOR is contained on the last page(s) of an inmate's Federal
Criminal Judgment (formally known as the Judgment in a Criminal Case).
The SOR contains the sentencing court's final advisory U.S. Sentencing
Guidelines (USSG) calculations, which reflect its decisions on various
issues such as whether to impose a sentence which varies from the USSG
and its reasons for doing so. PSRs, SORs, and other similar documents
contain personal information regarding, for example, government
assistance, gang affiliations, financial resources, involvement of
family members and others in the community, etc.
In 2002, the Bureau recognized an emerging problem: Inmates, or
inmate groups, pressure other inmates for copies of their PSRs and SORs
to learn if they are informants, gang members, have financial
resources, or to learn of others involved in the offense, etc. Inmates
who produced, or refused to produce, the documents were often
threatened, assaulted, and/or sought protective custody, all of which
jeopardized the Bureau's ability to effectively and safely manage its
institutions. The defense bar, Federal sentencing courts, and the
Bureau identified this issue. The Bureau worked closely with the
Administrative Office of the U.S. Courts (AOUSC) in crafting this
change.
Inmates incarcerated in Bureau facilities, including those in
contract facilities or in community confinement, may still review their
PSRs, SORs, or other similar documents locally. Staff must provide
inmates reasonable opportunities to locally review these documents as
staff time and official duties permit. During local reviews, inmates
are allowed to make handwritten notes. Only the inmates' retention of
copies of these documents is prohibited, unless the inmate is a
pretrial inmate with a need to review these documents prior to
sentencing.
In Dept. of Justice v. Julian, 486 U.S. 1 (1988), the U.S. Supreme
Court decided the government was obligated to provide inmates access to
their own pre-sentence investigation reports under the Freedom of
Information Act (FOIA). By continuing to provide inmates reasonable
access to locally review their PSRs and SORs, the Bureau's obligation
under the FOIA is satisfied. The Julian decision did not mandate that
inmates be permitted to obtain and possess copies of these documents
contrary to legitimate penological interests, i.e., the safety and
security of Bureau institutions, inmates, staff, and the public.
Finally, this rule indicates that persons other than the inmate may
not obtain copies of inmate PSRs, SORs, or other similar documents from
the Bureau while the inmate is incarcerated, even if they provide
written authorization from the inmate. This is necessary because the
Bureau has found that third parties not affiliated with the inmate
sometimes force inmate authorization and then use the inmate's PSR and/
or SOR to prove gang affiliation to other inmates or for other reasons
that are contrary to legitimate penological interests, i.e., the safety
and security of Bureau institutions, inmates, staff, and the public.
Third parties may, however, continue to request copies of PSRs, SORs,
or other similar documents directly from the sentencing court, defense
counsel, or the U.S. Probation Office.
Executive Order 12866
We drafted and reviewed this regulation reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'', section
1(b), Principles of Regulation. It has been determined that this rule
is a ``significant regulatory action'' under Executive Order 12866,
section 3(f), and accordingly this rule has been reviewed by the Office
of Management and Budget.
Executive Order 13132
This regulation will not have substantial direct effects on the
States,
[[Page 13707]]
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
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 513
Prisoners.
Harley G. Lappin,
Director, Bureau of Prisons.
Under 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 propose to amend 28 CFR part 513, subpart D,
as follows.
SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
PART 513--ACCESS TO RECORDS
1. Revise the authority citation for 28 CFR part 513 to read as
follows:
Authority: 5 U.S.C. 301; 13 U.S.C.; 18 U.S.C. 3621, 3622, 3624,
4001, 4042, 4942, 4081, 4082 (Repealed in part as to conduct
occurring on or after November 1, 1987), 5006-5024 (Repealed October
12, 1984, as to conduct occurring after that date), 5039; 28 U.S.C.
509, 510; 31 U.S.C. 3711(f); 5 CFR part 297.
2. Revise Sec. 513.40(a) as follows:
Sec. 513.40 Inmate access to Inmate Central File.
* * * * *
(a) Inmate review of his/her Inmate Central File. (1) Request to
review Inmate Central File. An inmate may at any time request to review
all disclosable portions of his/her Inmate Central File by submitting a
request to a staff member designated by the Warden. Staff are to
acknowledge the request and schedule the inmate, as promptly as is
practical, for a review of the file at a time which will not disrupt
institution operations.
(2) Pre-Sentence Investigation Reports, Statements of Reason, or
other similar documents. Inmates incarcerated in Bureau facilities,
including those in contract facilities or community confinement, are
prohibited from possessing their Pre-Sentence Investigation Reports
(PSRs), Statements of Reasons (SORs), or other similar sentencing
documents from criminal judgments.
(i) Sentenced inmates in Bureau facilities, including those in
contract facilities or community confinement, may request an
opportunity to review these documents and take notes, but will not be
permitted to possess copies of these documents.
(ii) Pretrial inmates in Bureau facilities, including those in
contract facilities or community confinement, may possess and review
these documents in preparation for sentencing.
(iii) Persons other than the inmate may not obtain copies of inmate
PSRs, SORs, or other similar documents from the Bureau while the inmate
is incarcerated in a Bureau facility, including those in contract
facilities or community confinement, even if they provide written
authorization from the inmate. Such persons may request these documents
directly from the sentencing court, defense counsel, or U.S. Probation
Office.
[FR Doc. 2010-6288 Filed 3-22-10; 8:45 am]
BILLING CODE 4410-05-P