[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Rules and Regulations]
[Pages 21163-21164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9373]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 540
[BOP-1149-I]
RIN 1120-AB49
Inmate Communication With News Media: Removal of Byline
Regulations
AGENCY: Bureau of Prisons, Justice.
ACTION: Interim rule.
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SUMMARY: In this interim rule, the Bureau of Prisons (Bureau) revises
its regulations regarding inmate contact with the community to delete
two current Bureau regulations that prohibit inmates from publishing
under a byline, due to a recent court ruling invalidating Bureau
regulation language containing this prohibition.
DATES: Comments are due by June 22, 2010.
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:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made 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.
In this interim rule, the Bureau revises its regulations regarding
inmate contact with the community to delete two current Bureau
regulations that prohibit inmates from publishing under a byline, due
to a recent court ruling invalidating Bureau regulation language
containing this prohibition.
Currently, 28 CFR 540.20(b) states as follows: ``The inmate may not
receive compensation or anything of value for correspondence with the
news media. The inmate may not act as reporter or publish under a
byline.''
Also, current 28 CFR 540.62(d) states as follows: ``An inmate
currently confined in an institution may not be employed or act as a
reporter or publish under a byline.''
On August 9, 2007, in Jordan v. Pugh, 504 F.Supp.2d 1109 (D. Colo.
2007), the court issued a decision invalidating the byline language of
Sec. 540.20(b). 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
Bureau is not appealing this decision. We
[[Page 21164]]
therefore alter the regulations accordingly.
Further, due to the court's findings regarding Sec. 540.20(b), the
identical provision in Sec. 540.62(d) will also be deleted.
Administrative Procedure Act
The Administrative Procedure Act (5 U.S.C. 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.''
Further, Sec. 553(d) provides an exception to the usual requirement of
a delayed effective date when an agency finds ``good cause'' that the
rule be made immediately effective.
This rulemaking is exempt from normal notice-and-comment procedures
because advance notice and public comment in this instance is
impracticable. It is impracticable to invite public comment on the
result of a court order which invalidated the regulatory provision
which we now seek to remove. Further, prompt implementation of the
court order is necessary to protect the Bureau from liability arising
from potential application of an invalidated regulation, and to afford
inmates the benefit of the court's decision. Otherwise, this rulemaking
makes no change to any rights or responsibilities of the agency or any
regulated entities. For the same reasons, the Bureau finds that ``good
cause'' exists to make this rule effective upon publication.
Nevertheless, the Bureau invites public comment on this interim rule.
Executive Order 12866
This regulation falls 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 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.
Harley G. Lappin,
Director, Bureau of Prisons.
0
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 amends 28 CFR part 540 as follows.
PART 540--CONTACT WITH PERSONS IN THE COMMUNITY
0
1. Revise the authority citation for 28 CFR part 540 to read as
follows:
Authority: 5 U.S.C. 301; 551, 552a; 18 U.S.C. 1791, 3621, 3622,
3624, 4001, 4042, 4081, 4082 (Repealed in part 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.
Subpart B--Correspondence
0
2. Revise Sec. 540.20(b) as follows:
Sec. 540.20 Inmate correspondence with representatives of the news
media.
* * * * *
(b) The inmate may not receive compensation or anything of value
for correspondence with the news media. The inmate may not act as
reporter.
* * * * *
Subpart E--Contact With News Media
0
3. Revise Sec. 540.62(d) as follows:
Sec. 540.62 Institutional visits.
* * * * *
(d) An inmate currently confined in an institution may not be
employed or act as a reporter.
* * * * *
[FR Doc. 2010-9373 Filed 4-22-10; 8:45 am]
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