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[Federal Register Volume 80, Number 14 (Thursday, January 22, 2015)]
[Rules and Regulations]
[Pages 3168-3178]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-01024]

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP Docket No. 1148-F]
RIN 1120-AB48

Communications Management Units

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes 
regulations that establish and describe Communications Management Units 
(CMUs) by regulation. The CMUs regulations serve to detail the specific 
restrictions that may be imposed in the CMUs in a way that current 
regulations authorize but do not detail. CMUs are designed to provide 
an inmate housing unit environment that enables staff monitoring of all 
communications between inmates in a Communications Management Unit 
(CMU) and persons in the community. The ability to monitor such 
communication is necessary to ensure the safety, security, and orderly 
operation of correctional facilities, and protection of the public. 
These regulations represent a ``floor'' beneath which communications 
cannot be further restricted. The Bureau currently operates CMUs in two 
of its facilities. This rule clarifies existing Bureau practices with 
respect to CMUs.

DATES: This rule is effective on February 23, 2015.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: This final rule codifies and describes the 
Bureau's procedures for designating inmates to, and limiting 
communication within, its CMUs. Currently, the Bureau operates two 
CMUs, separately located at the Federal Correctional Complex (FCC), 
Terre Haute, Indiana (established in December 2006), and the United 
States Penitentiary (USP), Marion, Illinois (established in March 
2008). A proposed rule was published on April 6, 2010 (75 FR 17324). We 
received 733 comments during the 2010 comment period. We later reopened 
the comment period on March 10, 2014, for 15 days (79 FR 13263). We 
received an additional 443 comments during the 2014 comment period. 
Similar issues were raised by most of the commenters. We respond below 
to the issues raised.

Designation to a CMU Is Not Discriminatory or Retaliatory

    Several commenters felt that there exists in CMUs an 
``overrepresentation of Muslim and political prisoners, showing that 
CMUs are not designed for legitimate purposes, but rather to 
discriminate and remove and isolate politically active members of 
society.''
    The Bureau does not use religion or political affiliation as a 
criterion for designation to CMUs. 28 CFR 551.90 states the Bureau's 
non-discrimination policy: ``Bureau staff shall not discriminate 
against inmates on the basis of race, religion, national origin, sex, 
disability, or political belief. This includes the making of 
administrative decisions and providing access to work, housing and 
programs.'' Further, Sec.  540.201, which describes the designation 
criteria, must be read in tandem with Sec.  540.202, particularly 
subparagraph (b), which states that after the Bureau becomes aware of 
one or more of the criteria described in Sec.  540.201, the Bureau's 
Assistant Director for the Correctional Programs Division must conduct 
a review of the evidence found and make a finding that designation to 
the CMU is necessary to ensure the safety, security, and orderly 
operation of correctional facilities or protection of the public. An 
inmate cannot, therefore, be designated to a CMU based upon religious 
or political affiliation, both because neither are part of the stated 
criteria, and because it is also necessary to have credible evidence of 
a threat to the safety, security, and good order of the institution or 
protection of the public to support designation to a CMU.
    Instead, an important category of inmates that might be designated 
to a CMU is inmates whose current offense(s) of conviction, or offense 
conduct, included association, communication, or involvement, related 
to international or domestic terrorism. Past behaviors of terrorist 
inmates provide sufficient grounds to suggest a substantial risk that 
they may inspire or incite terrorist-related activity, especially if 
ideas for or plans to incite terrorist-related activity are 
communicated to groups willing to engage in or to provide equipment or 
logistics to facilitate terrorist-related activity. The potential 
ramifications of this activity outweigh the inmate's interest in 
unlimited communication with persons in the community.
    Communication related to terrorist-related activity can occur in 
codes that are difficult to detect and extremely time-consuming to 
interpret. Inmates involved in such communication, and other persons 
involved or linked to terrorist-related activities, take on an exalted 
status with other like-minded individuals. Their communications acquire 
a special level of inspirational significance for those who are already 
predisposed to these views, causing a substantial risk that such 
recipients of their communications will be incited to unlawful 
terrorist-related activity.
    The danger of coded messages from prisoners has been recognized by 
the courts. See Turner v. Safley, 482 U.S. 78, 93 (1987) (``In any 
event, prisoners could easily write in jargon or codes to prevent 
detection of their real messages.''); United States v. Salameh, 152 
F.3d 88, 108 (2nd Cir. 1998) (``Because Ajaj was in jail and his 
telephone calls were monitored, Ajaj and Yousef spoke in code when 
discussing the bomb plot.''); United States v. Johnson, 223 F.3d 665, 
673 (7th Cir. 2000) (``And we know that anyone who has access to a 
telephone or is permitted to receive visitors may be able to transmit a 
lethal message in code.''); United States v. Hammoud, 381 F.3d 316, 334 
(4th Cir. 2004) (``A conversation that seems innocuous on one day may 
later turn out to be of great significance, particularly if the 
individuals are talking in code.''); United States v. Moncivais, 401 
F.3d 751, 757 (6th Cir. 2005) (noting that seemingly nonsensical 
conversations could be in code and interpreted as indicative of drug 
dealing activity). Also, an Al Qaeda training manual contains the 
following advice regarding communications from prison: ``Take advantage 
of visits to communicate with brothers outside prison and exchange 
information that may be helpful to them in their work outside prison. 
The importance of mastering the art of hiding messages is self-evident 
here.''

[[Page 3169]]

    There have been cases of imprisoned terrorists communicating with 
their followers regarding future terrorist activity. For example, after 
El Sayyid Nosair assassinated Rabbi Kahane, he was placed in Rikers 
Island, where ``he began to receive a steady stream of visitors, most 
regularly his cousin El-Gabrowny, and also Abouhalima, Salameh, and 
Ayyad. During these visits, as well as subsequent visits once Nosair 
was at Attica, Nosair suggested numerous terrorist operations, 
including the murders of the judge who sentenced him and of Dov Hikind, 
a New York City Assemblyman, and chided his visitors for doing nothing 
to further the jihad against the oppressors. Nosair also tape recorded 
messages while in custody . . .'' United States v. Rahman, 189 F.3d 88, 
105-06 (2d Cir. 1999). Imprisoned, Sheikh Abdel Rahman had urged his 
followers to wage jihad to obtain his release. Violent attacks and 
murders followed. United States v. Sattar, 314 F.Supp.2d 279, 288-89 
(S.D.N.Y. 2004).
    To minimize the risk of terrorist-related communication and other 
similar dangerous communication to or from inmates in Bureau custody, 
this regulation clarifies the Bureau's current authority to limit and 
monitor the communication of inmates in CMUs to immediate family 
members, U.S. Courts, federal judges, U.S. Attorney's Offices, Members 
of U.S. Congress, the Bureau, other federal law enforcement entities, 
and the inmate's attorney. The Bureau allows communication with these 
individuals to help inmates maintain family ties, and protect inmates' 
access to courts and other government officials. This permits inmates 
to raise issues related to their incarceration or their conditions of 
confinement, while minimizing potential internal or external threats.
    The presence of Muslim inmates in CMUs does not indicate 
discrimination, especially given the alternative explanations for 
designation of inmates to the CMU in Sec.  540.201. In Ashcroft v. 
Iqbal, 129 S.Ct. 1937 (2009), the plaintiffs alleged that former FBI 
Director Mueller and Attorney General Ashcroft engaged in ``invidious 
discrimination'' against Muslims because the FBI ``arrested and 
detained thousands of Arab Muslim men'' following the 9/11 attacks. 
Iqbal, 129 S.Ct. at 1951. ``Taken as true, the Court found these 
allegations are consistent'' with Plaintiffs' claim that the men were 
detained ``because of their race, religion, or national origin. But 
given more likely explanations, they do not plausibly establish this 
purpose.'' Id. In particular, the Court found that the ``obvious 
alternative explanation'' for the arrests was that they were a response 
to legitimate security concerns following the 9/11 attacks. Id. As the 
Court concluded, in the face of this explanation, ``the purposeful, 
invidious discrimination respondent asks us to infer . . . is not a 
plausible conclusion.'' Id. at 1951-1952.
    The Bureau, acting on a case-by-case basis, may designate an inmate 
to a CMU for heightened monitoring for any of the reasons articulated 
in Sec.  540.201. This valid legitimate penological purpose negates a 
claim of a Bureau-wide conspiracy to discriminate against Muslims.

Assignment to a CMU With Notice Upon Arrival Does Not Violate the Due 
Process Clause

    Several commenters, either inmates in CMUs or friends or relatives 
of inmates in CMUs, stated that the inmates were placed there without 
prior notice, and that such placement is in violation of the Due 
Process Clause of the Fifth Amendment of the United States 
Constitution.
    Written notice. As indicated in the proposed rule, upon arrival at 
the designated CMU, inmates receive written notice from the Warden of 
the facility in which the CMU exists of the inmate's placement. The 
written notice explains that:
    (1) Designation to a CMU allows greater Bureau staff management of 
communication with persons in the community through complete monitoring 
of telephone use, written correspondence, and visiting. The volume, 
frequency, and methods of CMU inmate contact with persons in the 
community may be limited as necessary to achieve the goal of total 
monitoring, consistent with this subpart;
    (2) General conditions of confinement in the CMU may also be 
limited as necessary to provide greater management of communications;
    (3) Designation to the CMU is not punitive and, by itself, has no 
effect on the length of the inmate's incarceration. Inmates in CMUs 
continue to earn sentence credit in accordance with the law and Bureau 
policy;
    (4) Designation to the CMU follows the Assistant Director's 
decision that such placement is necessary for the safe, secure, and 
orderly operation of Bureau institutions, or protection of the public. 
The inmate will be provided an explanation of the decision in 
sufficient detail, unless the Assistant Director determines that 
providing specific information would jeopardize the safety, security, 
and orderly operation of correctional facilities, and/or protection of 
the public;
    (5) Continued designation to the CMU will be reviewed regularly by 
the inmate's Unit Team under circumstances providing the inmate notice 
and an opportunity to be heard, in accordance with the Bureau's policy 
on Classification and Program Review of Inmates; and
    (6) The inmate may challenge the CMU designation decision, and any 
aspect of confinement therein, through the Bureau's administrative 
remedy program.
    Through the written notice, inmates are informed that designation 
to the CMU follows the Assistant Director's decision that such 
placement is necessary for the safe, secure, and orderly operation of 
Bureau institutions, or protection of the public. The inmate is 
provided an explanation of the decision in sufficient detail, unless 
providing specific information would jeopardize the safety, security, 
or orderly operation of the facility, or protection of the public.
    Continued placement in CMUs may not be necessary and will be 
reviewed regularly by the inmate's Unit Team, as described above. 
Conditions may change and allow inmates to be transferred out of the 
CMUs. For instance, an inmate's behavior and conduct may change. 
Another example of an altered circumstance is that the heightened 
security risk or threat to the safety, security and good order of the 
institution or protection of the public may have changed in some way. 
For instance, if an inmate communicates about the possibility of a 
disruption at a particular public event, and the event timeframe 
passes, the security threat may be diminished.
    The requirements of due process. The due process clause protects 
persons against deprivations of ``life, liberty or property without due 
process of law.'' U.S. Const. Amend. V. A constitutionally-protected 
liberty interest can arise under the Constitution itself or be created 
by the State.
    If a court were to conclude that inmates had a constitutionally-
protected liberty interest in avoiding transfer to a CMU, the process 
that would have to be afforded an inmate would depend on the particular 
situation's demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972) 
(stating that the requirements are ``flexible''). Determining what 
procedural due process demands in a given situation requires balancing 
of three factors. Mathews v. Eldridge, 424 U.S. 319 (1976). They are: 
(1) The private interest affected; (2) the risk of erroneous 
deprivation of a liberty

[[Page 3170]]

interest as a result of procedures used, and the probable value, if 
any, of any alternative safeguards; and (3) the government's interest. 
Id. at 335.
    No private liberty interest is affected. An inmate's liberty 
interest in avoiding conditions of confinement can arise from the 
Constitution itself. Vitek v. Jones, 445 U.S. 480, 493-94 (1980) 
(finding liberty interest in avoiding psychiatric treatment against an 
inmate's will). However, the Constitution does not give rise to a 
liberty interest in avoiding a transfer to an institution that is 
``much more disagreeable than another.'' Meachum v. Fano, 427 U.S. 215, 
225 (1976); see also Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005). 
This includes institutions with ``more severe rules'' as long as the 
inmate is still within the normal limits or range of custody authorized 
by the conviction. Id. ``Transfers between institutions. . . are made 
for a variety of reasons and often involve no more than informed 
predictions as to what would best serve institutional security or the 
safety and welfare of the inmate.'' Meachum, 427 U.S. at 225.
    Since the Constitution does not give rise to a liberty interest 
when the issue is avoiding a transfer to an institution that is less 
favorable or more restrictive than another, inmates do not have a 
liberty interest that should be protected from transfer to a CMU.
    In Wilkinson v. Austin, the Supreme Court held that a liberty 
interest arises when an inmate is transferred to a maximum security 
prison where, among other restrictions, ``almost all human contact is 
prohibited, even to the point that conversation is not permitted from 
cell to cell.'' 545 U.S. 209, 223-24 (2005); id. at 224 (noting that 
the inmates were placed in the facility for indefinite duration and 
were disqualified for parole consideration during their placement). 
Because the conditions imposed ``an atypical and significant 
hardship,'' the Court found a state-created liberty interest in that 
case. Id. at 223.
    However, unlike the situation in Wilkinson, there is no state-
created liberty interest based upon the facts of confinement in a CMU. 
Inmates are subjected to an ``atypical and significant hardship'' if 
the hardships are more egregious than the ``ordinary incidents of 
prison life.'' Sandin v. Conner, 515 U.S. 472, 484 (1995). The 
restrictions imposed on inmates in CMUs are not atypical of the 
ordinary incidents of prison life. Restrictions on communication are 
common and are within the discretion of the prison authorities to 
regulate. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Current 
regulations that apply to general population inmates allow the warden 
of a particular facility to impose heightened restrictions on inmates' 
communications with the public. (28 CFR 540.15; Sec.  540.43; Sec.  
540.100.)
    The conditions at a CMU are not like those at issue in Wilkinson; 
indeed, they are not significantly different from the ordinary 
incidents of prison life. Inmates in the CMU operate as a general 
population unit, where they participate in all educational, 
recreational, religious, unit management and work programming within 
their unit.
    The communications restrictions possible in the CMU do not rise to 
the level that implicates violation of a liberty interest. To 
effectively and efficiently allow monitoring and review of the general 
correspondence communications of inmates in CMUs, those communications 
may be limited in frequency and volume as follows:
     Written correspondence may be limited to six (expanded 
from the proposed rule limitation to three) pieces of paper, double-
sided, once per week to and from a single recipient (in addition, 
electronic messaging may be limited to two messages, expanded from the 
proposed rule limitation of one, per calendar week, to and from a 
single recipient at the discretion of the Warden);
     Telephone communication may be limited to three completed 
calls (expanded from the proposed rule limitation to one call) per 
calendar month for up to 15 minutes; and
     Visiting may be limited to four one-hour visits (expanded 
from the proposed rule limitation of one one-hour visit) each calendar 
month.
    Unless the quantity to be processed becomes unreasonable or the 
inmate abuses or violates these regulations, there is no frequency or 
volume limitation on written correspondence with the following 
entities: U.S. courts, Federal judges, U.S. Attorney's Offices, Members 
of U.S. Congress, the Bureau of Prisons, other federal law enforcement 
entities, or, as stated earlier, the inmate's attorney (privileged, 
unmonitored communications only). Correspondence with these entities is 
not limited under these regulations in furtherance of inmates' access 
to courts and their ability to defend in litigation.
    Even assuming that inmates have a liberty interest in this context, 
inmates have been afforded sufficient process and will continue to be 
afforded due process by these regulations, under the Mathews standard. 
Inmates are afforded post-placement due process in the form of written 
notice under Sec.  540.202(c) upon arrival, which includes information 
on how to appeal the designation decision.
    There is little risk of erroneous deprivation of a liberty 
interest. The second factor addresses the possibility that an inmate 
could be erroneously assigned to the wrong unit. Inmates placed in the 
CMU are given notice of their transfers under the regulations (Sec.  
540.202(c)) and their opportunity to appeal. The notice delineates the 
specific reasons for their designation within this program unless the 
Assistant Director determines that providing the information would 
jeopardize the safety, security, and orderly operation of correctional 
facilities, and/or protection of the public. If information in the 
notice is inaccurate, inmates may appeal regarding the inaccuracy of 
the information contained in the notice, the CMU designation decision, 
and any other aspect of confinement therein, through the Bureau's 
administrative remedy program. See 28 CFR 542.10-542.19 and Sec.  
540.202(c)(6). The procedures thus offer an inmate notice and an 
opportunity to appeal the decision. See Wilkinson, 545 U.S. at 226 
(``Our procedural due process cases have consistently observed that 
[notice of the factual basis leading to consideration for placement and 
a fair opportunity for rebuttal] are among the most important 
procedural mechanisms for purposes of avoiding erroneous 
deprivations.'') This procedure allows for the review of an inmate's 
claim that he has been erroneously placed in the CMU.
    Further, continued designation to the CMU is regularly reviewed by 
the inmate's Unit Team under circumstances providing the inmate notice 
and an opportunity to be heard, in accordance with the Bureau's policy 
on Classification and Program Review of Inmates. See id. at 227 (review 
30 days after assignment to facility ``further reduces the risk of 
erroneous placement''). These procedures, therefore, afford sufficient 
protection from the risk of erroneous deprivation of any liberty 
interest.
    The government's interest is significant. The final Mathews factor 
is the governmental interest in placing inmates in a CMU; this interest 
is a ``dominant consideration.'' Wilkinson at 227. The interest of 
protecting the security of the facility is a legitimate penological 
interest that has been consistently acknowledged by the Supreme Court. 
Sandin v. Conner, 515 U.S. 472, 484 (1995); Block v. Rutherford, 468 
U.S. 576, 586 (1984). Particularly, with regard to the CMUs, the 
government's interest in protecting

[[Page 3171]]

the security of the facility and the public is furthered by allowing 
the government to concentrate monitoring resources, thereby increasing 
the probability of detecting and deterring dangerous communications and 
reducing potential security issues.
    By limiting the frequency and volume of the communication to and 
from inmates identified under this regulation, the Bureau reduces the 
amount of communication requiring monitoring and review. Reducing the 
volume of communications helps ensure the Bureau's ability to provide 
heightened scrutiny in reviewing communications, thereby increasing 
both internal security within correctional facilities, and the security 
of members of the public.
    As we explained in the proposed rule, the Bureau has determined 
that in the context of inmates in CMUs, the restrictions authorized by 
the CMUs regulations are the most appropriate means of accomplishing 
the Bureau's legitimate goal and compelling interest to ensure the 
safety, security, and orderly operation of Bureau facilities, and 
protection of the public. We stated the following in the preamble to 
the proposed rule:
    ``The CMU concept allows the Bureau to monitor inmates for whom 
such monitoring and communication limits are necessary, whether due to 
a terrorist link or otherwise, such as inmates who have previously 
committed an infraction related to mail tampering from within an 
institution, or inmates who may be attempting to communicate with past 
or potential victims. The ability to monitor such communication is 
necessary to ensure the safety, security, and orderly operation of 
correctional facilities, and protect the public. The volume, frequency, 
and methods of CMU inmate contact with persons in the community may be 
limited as necessary to achieve the goal of total monitoring, 
consistent with this subpart.''

Restricting Inmates' Telephone and Visiting Privileges Does Not Violate 
the Due Process Clause

    Several commenters stated that CMU restrictions on visiting and 
telephone calls violate the Due Process Clause and the rights of 
inmates in CMUs.
    Substantive Due Process. In analyzing whether the communication 
restrictions violate substantive due process, the proper inquiry is 
whether the prison regulation or policy ``is reasonably related to 
legitimate penological interests.'' Turner v. Safley, 482 U.S. 78, 89 
(1987); Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Several factors 
are relevant to the reasonableness inquiry; Turner identified four 
factors, the first of which has been described as the most important: 
There must be a ``valid, rational connection'' between the regulation 
and the objective set forth to justify it. Turner, 482 U.S. at 89; 
Beard v Banks, 548 U.S. 521, 532 (2006) (describing the particular 
importance of this factor, explaining that in a given case, the second, 
third, and fourth Turner factors may ``add little, one way or another, 
to the first factor's basic logical rationale.'').
    Here, analysis of this factor demonstrates that the regulation is 
reasonably related to legitimate interests. The regulation is designed 
to ensure the safety, security, and good order of Bureau institutions 
and protection of the public. Security of the facility has been cited 
as a valid primary interest in not permitting contact visitation for 
pretrial detainees. Sandin v. Conner, 515 U.S. 472, 484 (1995); Block 
v. Rutherford, 468 U.S. 576, 586 (1984). The regulation furthers this 
legitimate penological interest by effectively monitoring the 
communications of high-risk inmates. The regulation and the penological 
interest are, therefore, rationally related.
    Procedural Due Process. The limitations on telephone use and 
visitation do not violate the procedural due process rights of inmates 
in CMUs because they do not implicate a protected liberty interest. 
These restrictions are ordinary incidents of prison life. Such 
restrictions do not rise to the level which the Supreme Court has 
determined is outside the normal boundaries of confinement needed to 
trigger a liberty interest under the Due Process Clause. See Vitek v. 
Jones, 445 U.S. 480, 493-94 (1980) (transfer to mental hospital); 
Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary 
administration of psychotropic drugs); Wilkinson v. Austin, 545 U.S. 
209 at 224 (2005) (indefinite transfer to solitary confinement). Courts 
have recognized that similar limitations do not threaten a protected 
liberty interest. See Searcy v. United States, 668 F.Supp.2d 113, 122 
(D.D.C. 2009) (internal quotation marks omitted) (``An inmate has no 
right to unlimited telephone use.'''); Perez v. Federal Bureau of 
Prisons, 229 Fed. Appx. 55, 58 (3d Cir. 2007) (``[L]imits on telephone 
usage are ordinary incidents of prison confinement,'' and their 
restriction ``do[es] not implicate a liberty interest protected by the 
Due Process Clause.'').
    There is also no liberty interest protected by the Due Process 
Clause that is implicated by the rules governing the scheduling of 
visits or phone calls in the CMU. In fact, not only are the CMU 
restrictions well below the level necessary to trigger a liberty 
interest, but they also are within the scope of restrictions authorized 
by the Bureau's current regulations. 28 CFR 540.100 and 540.101(d) 
indicate that inmate telephone use may be limited as necessary to 
protect institutional security and the safety of the public. Further, 
28 CFR 540.51(h)(2) indicates that restrictions on contact visiting, 
for example, are permitted if necessary for security reasons. Also, the 
restrictions imposed upon attorney visiting are within the current 
visiting parameters: As stated in Sec.  540.205(b), ``Regulations and 
policies previously established under 28 CFR part 543 are applicable.''
    However, in response to public comment, the final regulations 
provide new limitations which would be more consistent with the 
Bureau's resources for monitoring communications. Again, the 
limitations in the regulation serve as the minimum requirement. Further 
access may be granted as resources allow, in the discretion of Bureau 
staff, on a case-by-case basis. The CMUs regulations serve to detail 
the specific restrictions which may be imposed in the CMU in a way that 
current regulations authorize but do not detail.

Restrictions on Unmonitored Communication With Members of the Media Are 
Not Unconstitutional

    The regulations allow communication with news media (via telephone 
or writing) ``only at the discretion of the warden.'' Several 
commenters argued that this language authorized a ``complete ban on 
communication with news media, a result that is unconstitutional under 
existing case law.''
    First, we note that the regulations in Sec.  540.203 do not 
restrict with whom a CMU inmate may correspond. The only restriction in 
the regulation related to correspondence is as follows: The regulations 
state that ``[s]pecial mail, as defined in Part 540, is limited to 
privileged communication with the inmate's attorney.'' Sec.  
540.203(b). This means that any correspondence with representatives of 
the news media will be subject to the level of inspection given to 
other general mail correspondence. There will be no unmonitored 
communication with news media representatives.
    Second, it is true that inmates in CMUs may not have unmonitored 
telephone communication with news media representatives. The regulation 
states that ``[u]nmonitored telephone communication is limited to 
privileged communication with the inmate's

[[Page 3172]]

attorney. Unmonitored privileged telephone communication with the 
inmate's attorney is permitted as necessary in furtherance of 
litigation, after establishing that communication with the verified 
attorney by confidential correspondence or visiting, or monitored 
telephone use, is not adequate due to an urgent or impending 
deadline.'' Sec.  540.204(b).
    Contrary to the commenters' assertions, prison officials are not 
required to permit and accommodate confidential, unmonitored 
communication between inmates and news media representatives. Previous 
case law has not afforded news media any greater right of access to 
inmates than that of the general public. See, e.g., Houchins v. KQED, 
438 U.S. 1, 16 (1978) (``Neither the First Amendment nor the Fourteenth 
Amendment mandates a right of access to government information or 
sources of information within the government's control. . . . [T]he 
media have no special right of access to the Alameda County Jail 
different from or greater than that accorded the public generally.''); 
Saxbe v. Washington Post Co., 417 U.S. 843 (1974) (upholding regulation 
prohibiting face-to-face interviews with certain inmates); Pell v. 
Procunier, 417 U.S. 817 (1974) (regulation imposing conditions for 
press interviews of inmates did not unconstitutionally interfere with 
rights of inmates or the media) ; Johnson v. Stephan, 6 F.3d 691 (10th 
Cir. 1993). Rather, as made clear in these cases, news media 
representatives are entitled to no greater prisoner access than the 
general public. Inmate communications with news media representatives 
are governed by regulations in 28 CFR part 540, subpart E.

The Regulation Contains No ``Absolute Ban'' on Communication With 
Clergy, Consular Officials, or Non-Immediate Family Members

    Some commenters stated that the proposed regulation's limitations 
on communication with clergy and other religious communications violate 
the Religious Freedom Restoration Act, 42 U.S.C. 2000bb (2006) 
(hereinafter ``RFRA''); others suggested that restrictions on 
visitation violated inmates' due process rights. These and other 
commenters also stated that the regulations impose an ``absolute ban'' 
on communications with clergy and non-immediate family members. One 
commenter also stated that these regulations violate Article 36 of the 
Vienna Convention on Consular Relations (1969), which gave ``consular 
officers'' the ``right to visit a national of the sending State who is 
in prison, custody or detention, to converse and correspond with him 
and to arrange for his legal representation. They shall also have the 
right to visit any national of the sending State who is in prison, 
custody or detention . . .'' The same commenter likewise stated that 
the regulations impose a ``total ban'' on communication with ``most 
family members,'' citing 28 CFR 540.44(a), which defines immediate 
family members as being ``mother, father, step-parents, foster parents, 
brothers and sisters, spouse, and children.''
    There is no such ``absolute ban''. inmates in CMUs are not 
prohibited outright by these regulations from communicating with 
clergy, consular officials, or non-immediate family members. These 
regulations represent a ``floor'' beneath which communications cannot 
be further restricted. Communication restrictions are tailored to the 
security needs presented by each CMU inmate, on a case-by-case basis. 
The regulations contain no ban on written correspondence with these 
groups, nor any outright ban on telephone calls or visits with these 
groups, only stating that ``monitored telephone communication may be 
limited to immediate family members only'' (Sec.  540.204(a)), and that 
``regular visiting may be limited to immediate family members'' (Sec.  
540.205(a)) (emphasis added), not that it will, in fact, be so limited 
in every case.
    Any such restrictions imposed on an inmate's access to clergy do 
not violate RFRA. RFRA ``provides that government may substantially 
burden a person's exercise of religion only if it demonstrates that the 
burden is in furtherance of a compelling governmental interest, and is 
the least restrictive means of furthering that interest.'' 42 U.S.C. 
2000bb-1 (2006). The interest of protecting the security of the 
facility is a legitimate penological interest that has been 
consistently upheld by the Supreme Court. Sandin v. Conner, 515 U.S. 
472, 484 (1995); Block v. Rutherford, 468 U.S. 576, 586 (1984). The 
Senate Report on RFRA also recognized security of the institution as an 
interest of the ``highest order.'' S. Rep. 103-111, S. Rep. No. 111, 
103rd Cong., 1st Sess. 1993, 1993 U.S.C.C.A.N. 1892, 1899, 1993 WL 
286695, 10 (Leg. Hist.) The Bureau has a compelling interest to ensure 
the safety, security, and orderly operation of Bureau facilities, and 
protection of the public.
    Also, inmates in CMUs are provided the services of Bureau chaplains 
upon request, per 28 CFR 548.12, for religious care and counseling, 
thus providing inmates in CMUs an opportunity to engage in 
communications with clergy. As discussed below, inmates in CMUs are 
permitted to engage in religious practices and services. Any limitation 
on the access to clergy is, therefore, not unduly restrictive and 
satisfies RFRA.
    In comments on the restrictions on visiting, some commenters 
suggested that the restrictions violated the inmates' due process 
rights, citing Overton v. Bazzetta, 539 U.S. 126 (2003). In that case, 
the Supreme Court concluded that there was no violation even though the 
inmates in that case were denied visiting in certain circumstances 
because the restrictions were related to penological interests and 
alternatives were available. Id. at 135-36 (noting that telephone and 
letter communication were available alternatives). Although telephone 
and visiting contact may be limited to immediate family members in 
these regulations, written correspondence is not limited in this way. 
Therefore, even if an inmate were to have such restrictions on 
telephone and visiting contact with the above-mentioned groups, that 
inmate may correspond in writing with them, within the limits of 
current regulations, as an alternative method of communication.

No-Contact Visitation in the CMU Is Constitutional Under the First 
Amendment

    Several commenters stated that the CMU's no-contact visitation 
policy has significantly impacted the ability of inmates in CMUs to 
maintain close and personal relationships with family members, which 
results in emotional hardships and psychological issues for both the 
inmate and the visitor(s). These commenters believe that the no-contact 
visitation policy violates the inmates' right to free association 
contained in the First Amendment.
    First Amendment rights. Generally, claims of violation of First 
Amendment rights must be analyzed in light of the policies and goals of 
the prison. Pell v. Procunier, 417 U.S. 817, 822 (1974) (``[C]hallenges 
to prison restrictions that are asserted to inhibit First Amendment 
interests must be analyzed in terms of the legitimate policies and 
goals of the corrections system, to whose custody and care the prisoner 
has been committed in accordance with due process of law.''). A prison 
regulation or policy that ``impinges on an inmates' constitutional 
rights. . . is valid if it is reasonably related to a legitimate 
penological interests.'' Turner v. Safley, 482 U.S. 78, 89 (1987); 
Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
    As described above, several factors are relevant to the 
reasonableness inquiry:

[[Page 3173]]

First, there must be a ``valid, rational connection'' between the 
regulation and the objective set forth to justify it. Turner, 482 U.S. 
at 89. A second factor to consider is whether the inmate has an 
alternative means of exercising the restricted right. Id. at 90. A 
third factor to consider is the impact of accommodating the asserted 
right on prison staff, other inmates, and prison resources. Id. Last, 
courts should consider whether the restriction is an ``exaggerated 
response'' that ignores alternatives that accommodate the inmate's 
constitutional rights at a de minimis cost to legitimate penological 
interests. Id. at 90-91. The Supreme Court has recognized the 
particular importance of the first of these factors, explaining that in 
a given case, the second, third, and fourth Turner factors may ``add 
little, one way or another, to the first factor's basic logical 
rationale.'' Beard v. Banks, 548 U.S. 521, 532 (2006).

There Is a Rational Connection Between the Regulation and Its Objective

    The purpose of the limitation on contact visits is to effectively 
monitor the communications of high-risk inmates in order to ensure the 
safety, security, and good order of Bureau institutions and protection 
of the public. Security of a facility has been recognized as a valid 
interest in not permitting contact visitation for pretrial detainees. 
Block v. Rutherford, 468 U.S. 576, 586 (1984) (``[T]here is no dispute 
that internal security of detention facilities is a legitimate 
governmental interest . . . That there is a valid, rational connection 
between a ban on contact visits and internal security of a detention 
facility is too obvious to warrant extended discussion.''). Deference 
is given to the judgment of prison authorities in devising the policies 
and practices that further legitimate penological interests. Id. at 
589.
    In Block v. Rutherford, the Supreme Court addressed a due process 
challenge to a ban on contact visits between pretrial detainees and 
their family members and friends. 468 U.S. 576, 578 (1984). Because the 
case arose in the context of a challenge brought by pretrial detainees, 
who may not be ``punished prior to an adjudication of guilt in 
accordance with due process of law,'' the Court asked whether the 
restriction on contact visits was punitive. Id. at 583-84 (internal 
quotation marks omitted). In making this determination, the Court 
considered whether the restriction was ``reasonably related to a 
legitimate governmental objective,'' because if so, ``it does not, 
without more, amount to punishment.'' Id. (internal quotation marks 
omitted).
    The Court found the ban on contact visits helped to prevent the 
introduction of contraband and reduced the possibility of violent 
confrontations during visits, and, as a result, promoted the legitimate 
governmental objective of maintaining the internal security of the 
prison. Id. at 586. Once the Court decided that the restriction on 
contact visits did not qualify as punishment, its analysis ended, as 
there was no suggestion that the Constitution might independently 
provide a right to contact visits. Rather, the Court held ``the 
Constitution does not require that detainees be allowed contact visits 
when responsible, experienced administrators have determined, in their 
sound discretion, that such visits will jeopardize the security of the 
facility.'' Id. at 589.
    In Overton v. Bazzetta, 539 U.S. 126 (2003), the Supreme Court 
rejected a claim that restrictions on visitation violated the right to 
association of prisoners and their families under the Due Process 
Clause and First Amendment. The inmates who challenged the restrictions 
were all subject to no-contact visitation. Id. at 130. The prisoners 
were required to ``communicate with their visitors through a glass 
panel,'' and had no opportunity for any physical contact. Id. The Third 
Circuit has explained that ``nothing in Overton suggests that non-
contact visitation is, by itself, constitutionally suspect; to the 
contrary, the Court upheld additional restrictions affecting those 
subject to non-contact visitation.'' Henry v. Dep't of Corrections, 131 
Fed. Appx. 847, 850 (3rd Cir. 2005). The Overton decision is also 
consistent with the Supreme Court's previous holding in Block v. 
Rutherford that upheld a blanket ban on contact visits for pretrial 
detainees. 468 U.S. 576, 578, 586 (1984).
    By limiting the contact visits of inmates housed in the CMU, the 
Bureau seeks to balance First Amendment rights with its correctional 
mission and the special mission of the CMU. The Bureau has made a 
judgment that communications between the inmates housed in the CMUs and 
their visitors must be strictly monitored because the inmates meet one 
or more of the designation criteria listed in Sec.  540.201. The 
reasoning for the restrictions is rationally related to the legitimate 
governmental interest in preserving security, as communications could 
be easily passed without strict monitoring through a no-contact visit.

There Are Alternative Means of Exercising the Restricted Right

    Addressing the second Turner factor, we note that the alternatives 
to contact visitation are other forms of First Amendment expression. 
The Turner Court looked at whether the inmates were deprived of ``all 
means of expression.'' Turner, at 92. Inmates in the CMU, however, are 
granted no-contact visitation privileges for at least 4 one-hour visits 
each month (expanded from the proposed rule limitation of one one-hour 
visit). Further, inmates are permitted to maintain relationships 
through mediums other than visiting, such as through monitored 
correspondence, including carefully monitored email (which we have 
increased from one per calendar week in the proposed rule to two per 
calendar week), and telephone calls (which we have increased from one 
per month to three per month). These alternatives are sufficient forms 
of communication that meet the Turner test.

There Is a High-Risk Impact of Accommodating the Asserted Right on 
Prison Staff, Other Inmates, and Prison Resources

    The third Turner factor directs us to examine the impact of 
permitting the exercise of the asserted right and analyzing its impact. 
Permitting contact visiting would create a security threat to the staff 
and the public as a whole. The inmates housed in CMUs are segregated 
from the rest of the general population and are housed there for a 
specific reason. The CMUs are general population units designed to 
closely monitor inmates for whom such monitoring and communication 
limits have been determined necessary. Such inmates include those for 
whom communication limits are necessary due to a terrorist link, and 
also for those who are engaged in activities that threaten the security 
of the institution or endanger the public. Contact visiting would 
provide inmates who are at risk for communication threats with 
opportunities for passing along unauthorized communications.

Alternatives Were Considered

    Finally, the fourth Turner factor requires consideration of whether 
alternatives have been considered. Some commenters suggested 
alternatives to no-contact visiting. The suggested alternatives do not 
adequately serve the legitimate penological purpose of ensuring the 
safety of the institution and the public. Some commenters suggested 
contact visitation in the attorney-client room so that the visit could 
be live

[[Page 3174]]

monitored and recorded at a small cost to the prison. This is not an 
adequate alternative to the no-contact visitation. No-contact 
visitation is crucial to carefully monitor the transfer of information 
between the inmates and their visitors. The visitor and the inmate 
communicate through a telephone apparatus which is connected to the 
Bureau-wide inmate telephone system. This system, which records the 
communications and maintains the recordings, is used in all Bureau 
facilities and maintains records of all inmate telephone calls. This 
system is a reliable and powerful tool in the detection and prevention 
of criminal activities and disciplinary infractions. Monitoring via 
this system also permits correctional officials to immediately 
terminate communication taking place on the phone, whereas it is harder 
to immediately stop a prohibited communication during a contact visit.
    Also, the inmate telephone system consists of digital recordings 
which accurately store the conversations. These digital recordings are 
also easily maintained, retrieved, and used for law enforcement 
purposes and the detection of disciplinary infractions. Attorney-client 
visits, however, are not audio-monitored and attorneys and their 
clients do not communicate through the use of a telephone. An 
alternative means to record the communications between inmates and 
their visitors would not be as reliable as the inmate telephone system 
already in place. In addition, no-contact visitation eliminates the 
danger of introduction of contraband, including drugs and weapons, into 
the institution.
    The CMU restrictions satisfy the Turner test. The CMU regulation is 
rationally related to the governmental interest of preserving the 
orderly running of the institution and protection of the public by 
allowing the Bureau to monitor inmate communications with members of 
the public, while providing inmates with the means to maintain their 
ties to the community.

A Prohibition on Contact Visitation Does Not Violate the Eighth 
Amendment

    Some commenters stated that no-contact visiting constitutes ``cruel 
and unusual punishment'' in violation of the Eighth Amendment of the 
U.S. Constitution. U.S. Const. amend. VIII.
    A punishment violates the Eighth Amendment when it is incompatible 
with ``the evolving standards of decency that mark the progress of a 
maturing society.'' Trop v. Dulles, 356 U.S. 86, 101 (1958). For 
instance, the Eighth Amendment is violated if there is ``deliberate 
indifference to serious medical needs of prisoners,'' Estelle v. 
Gamble, 429 U.S. 97, 104 (1976); when the conditions are ``grossly 
disproportionate to the severity of the crime warranting 
imprisonment,'' Rhodes v. Chapman, 452 U.S. 337, 347 (1981); or when 
inmates are deprived of basic human needs. Hutto v. Finney, 437 U.S. 
678 (1978). As the Supreme Court has explained,

    Conditions other than those in Gamble and Hutto, alone or in 
combination, may deprive inmates of the minimal civilized measure of 
life's necessities. Such conditions could be cruel and unusual under 
the contemporary standard of decency . . . But conditions that 
cannot be said to be cruel and unusual under contemporary standards 
are not unconstitutional. To the extent that such conditions are 
restrictive and even harsh, they are part of the penalty that 
criminal offenders pay for their offenses against society.

Rhodes, at 347.

    The conditions of confinement present in the CMUs are not grossly 
disproportionate to the crimes committed by the inmates assigned to it. 
In fact, the inmates were placed in the CMU specifically because their 
offense of conviction, offense conduct, disciplinary record or other 
verified information raised serious concerns about their communications 
with members of the public and close monitoring of those communications 
was needed in order to preserve the security of the Bureau institutions 
and protect the public. As we stated in the proposed rule, under the 
regulation, inmates may be designated to a CMU if:
     The inmate's current offense(s) of conviction, or offense 
conduct, included association, communication, or involvement, related 
to international or domestic terrorism;
     The inmate's current offense(s) of conviction, offense 
conduct, or activity while incarcerated, indicates a substantial 
likelihood to encourage, coordinate, facilitate, or otherwise act in 
furtherance of, illegal activity through communication with persons in 
the community;
     The inmate has attempted, or indicates a substantial 
likelihood, to contact victims of the inmate's current offense(s) of 
conviction;
     The inmate committed a prohibited activity related to 
misuse/abuse of approved communication methods while incarcerated; or
     There is any other evidence of a potential threat to the 
safe, secure, and orderly operation of prison facilities, or protection 
of the public, as a result of the inmate's communication with persons 
in the community.
    Ultimately, the inmates are not being deprived of basic human needs 
by not permitting them to have physical contact with family or 
community members. The inmates are permitted to have visitors, although 
it is through no-contact visits, write letters, and make telephone 
calls to their family members, albeit under closer monitoring. Inmates 
are not completely deprived of all contact with family or community 
members.
    The no-contact visitation policy is a reasonable communication 
restriction that is within the discretion of prison authorities to 
implement. It does not approach the level of a cruel and unusual 
condition of confinement proscribed by the Eighth Amendment.

Conditions of CMU Confinement Are Not ``Atypical and Significant''

    Several commenters stated that conditions of confinement in the CMU 
were ``atypical and significant,'' thereby creating a liberty interest 
protected by the Due Process Clause.
    As discussed above, even where the Due Process Clause does not 
itself create a liberty interest, the government may create one where a 
prison restriction imposes an ``atypical and significant hardship on 
the inmate in relation to the ordinary incidents of prison life.'' 
Sandin, 515 U.S. at 484. In Sandin, the Court found that the 
disciplinary transfer of an inmate for 30 days to solitary confinement 
``did not present the type of atypical, significant deprivation in 
which a State might conceivably create a liberty interest.'' 515 U.S. 
at 486-87; id. at 494 (Breyer, J., dissenting) (describing conditions 
of confinement.) This is because the punishment ``mirrored those 
conditions imposed upon inmates in administrative segregation and 
protective custody.'' Id. at 486.
    Based on Sandin, the D.C. Circuit has sought to define the 
``ordinary incidents of prison life'' for purposes of creating a 
baseline that can be used to determine whether a particular restriction 
is atypical and significant. In Hatch v. District of Columbia, the D.C. 
Circuit rejected treating the conditions of prison life in the general 
population as the appropriate baseline. 184 F.3d 846, 856-58 (D.C. Cir. 
1999). Instead, Hatch explains that the conditions that are imposed in 
administrative segregation should be used in determining what 
constitutes the ``ordinary incidents of prison life.'' Id. at 855-85.
    Accordingly, the determination of what is atypical and significant 
should be made in comparison with the ``most restrictive confinement 
conditions that prison officials, exercising their

[[Page 3175]]

administrative authority to ensure institutional safety and good order, 
routinely impose on inmates serving similar sentences.'' Id. at 856. In 
making this determination, the nature of the restriction and its 
duration should both be considered. Id. at 858.
    Under Sandin and Hatch, the loss of contact visits and reduced time 
for visits and telephone calls do not constitute an ``atypical and 
significant'' deprivation. While the Bureau's visiting regulations only 
require four hours of visitation per month (28 CFR 540.43), inmates in 
CMUs have been allowed as much as eight hours of visits per month--
above the CMU proposed rule's one-hour ``floor'' (which the final rule 
changes to conform to the current visiting regulation limit of four 
one-hour visits per month). And consistent with the Warden's authority 
to ``restrict inmate visiting when necessary to ensure the security and 
good order of the institution,'' 28 CFR 540.40, Bureau regulations 
expressly contemplate the possibility that inmates will lose contact 
visitation privileges based on security concerns. Id. Sec.  
540.51(h)(2) (noting that ``[s]taff shall permit limited physical 
contact . . . unless there is clear and convincing evidence that such 
contact would jeopardize the safety or security of the institution). As 
described above, the Bureau has made a determination that threats to 
the security of its facilities and/or the public justify the imposition 
of no-contact visits.
    Inmate telephone use ``is subject to those limitations which the 
Warden determines are necessary to ensure the security or good order, 
including discipline, of the institution or to protect the public,'' 
and requires only that an inmate who is not on discipline receive one 
three minute telephone call each month. Id. Sec.  540.100(a)-(b); Sec.  
540.101(d); id. Sec.  540.100(a) (stating that ``[t]elephone privileges 
are a supplemental means'' of communicating with persons in the 
community). In contrast, some inmates in CMUs have received more 
telephone minutes than is required under the agency's regulations. 
Also, the final rule expands the telephone limitations from one call 
per month to three calls per month.
    In short, the CMU's communication restrictions do not constitute 
the kind of ``extraordinary treatment'' required to find a government-
created liberty interest. Smith v. U.S., 277 F.Supp.2d at 113 (no 
``atypical and significant'' deprivation due to prison transfer because 
prisoner was not subject to any extraordinary treatment, but instead 
transfer was an issue within the ``day-to-day management of prisons.'') 
(quoting Franklin v. District of Columbia, 163 F.3d 625, 634-35 (D.C. 
Cir. 1998)).

Religious Activities for Inmates in CMUs Are Permitted in the Same 
Manner as Religious Activities for Inmates Who Are Not in CMUs

    Some commenters stated that inmates in CMUs are prohibited from 
certain religious activities, such as congregational prayers, 
designated chapel space, limited recognition of voluntary religious 
fasting, and religious studies.
    Inmates in CMUs are permitted to pursue religious activities, 
including prayers, fasting, and studies, to the extent that it does not 
threaten the safety, security, or good order of the facility or 
protection of the public. Policies regarding religious practices are 
the same in the CMUs as for all other Bureau facilities, as outlined in 
28 CFR 548.10-20 and the Bureau's policy on religious beliefs and 
practices.
    Inmates in CMUs are permitted to hold several types of prayer in a 
similar manner as general population inmates. Congregate prayers are 
allowed in the CMU. Group prayers led by inmates are subject to 
constant staff supervision. Those who engage in additional prayers, 
such as individual prayers for Muslims (the five daily prayers) are 
permitted to do so in their own cells or in a previously designated 
area while at work or education or may pray independently at their work 
station. These inmates are provided an area out of the way, so as to 
not interfere with other operations or be disturbed themselves.
    Also, policy recognizes certain fasts as part of the religious 
practice and others as personal choice. There is a distinction to be 
made between fasts which are part of religious practice and those that 
are personal choice. Fasts which are part of religious practice are 
recognized as a routine practice in the religion; whereas fasts 
undertaken by personal choice, or to meet personal religious goals, are 
sporadic or non-routine fasts that are not recognized as routine 
practice as part of the religion. Inmates are permitted to fast as they 
see fit to meet their personal religious goals.
    A concern among the commenters was that inmates were not allowed to 
retain food in their cells from scheduled meals in order to eat the 
food later after their personal fasts. Bureau national policy on food 
service prohibits inmates, whether in CMUs or in general population, 
from removing food from the dining hall, except maybe one piece of 
whole fruit, due to health concerns and to avoid the spoiling of food 
items. Inmates have been informed if they choose to engage in a 
personal fast, then they choose to skip the scheduled meal(s) and 
cannot retain food in their cells from the dining hall. However, 
inmates in the CMU who raise this issue have been informed that they 
may purchase food items at the institution commissary for retention and 
later consumption in their cells.

The Authority of the Assistant Director, Correctional Programs 
Division, To Approve CMU Designations May Not Be Delegated

    Some commenters were concerned that the authority to approve CMU 
placement might be delegated below the level of Assistant Director.
    The Bureau's Assistant Director, Correctional Programs Division, 
has authority to approve CMU designations. The Assistant Director's 
decision must be based on a review of the evidence, and a conclusion 
that the inmate's designation to a CMU is necessary to ensure the 
safety, security, and orderly operation of correctional facilities, or 
protection of the public. There is no provision in the regulation that 
allows for delegation of the Assistant Director's authority.

Additional Issues Raised During the 2014 Comment Period

    The following additional miscellaneous issues were raised during 
the 2014 comment period.
    One commenter requested that we ``[e]dit the language of 540.200(b) 
to include `Vocational Technical Training, Unicor (FPI),' after `unit 
management,' and before `and work programming,' in order to incorporate 
these programs with programs already offered to CMU inmates.'' Section 
540.200(b) of the proposed rule states that a CMU ``is a general 
population housing unit where inmates ordinarily reside, eat, and 
participate in all educational, recreational, religious, visiting, unit 
management, and work programming, within the confines of the CMU.'' 
Vocational technical training is included in this phrase, as part of 
``all'' educational and work programming activities. Because it is 
already included in the general list, we will not include this specific 
reference.
    The same commenter requested that we ``[r]eplace the language of 
540.203(a) with `General Correspondence. General written correspondence 
as defined by part 540, may be limited to three pieces of handwritten 
correspondence (8.5 X 11 inches or smaller), double-sided, once per 
calendar week to and from any party on the inmate's approved contact 
list and an unlimited amount of typed or computer generated 
correspondence

[[Page 3176]]

mailed to or from any party on the inmate's approved contact list.' The 
Bureau of Prisons has the ability to scan all written correspondence.'' 
Our proposed rule stated that general written correspondence ``may be 
limited to three pieces of paper (not larger than 8.5 x 11 inches), 
double-sided writing permitted, once per calendar week, to and from a 
single recipient at the discretion of the Warden, except as stated in 
(c) below. This correspondence is subject to staff inspection for 
contraband and for content.'' In response to comments received 
requesting expansion of the three-page limitation, we double the 
limitation in the final rule to six pieces of paper.
    Subsection (c) of this regulation refers to the absence of a volume 
limitation on mail to and from certain listed correspondents. The 
commenter would substantively alter this provision to remove ``at the 
discretion of the Warden'' in favor of ``any party on the inmate's 
approved contact list.'' We do not make this change because the Warden 
may choose to temporarily suspend communications with someone that may 
be on the inmate's approved contact list for a certain period of time 
due to a time-sensitive threat, so it is more accurate to say that it 
is in the Warden's discretion. The commenter would also alter this 
provision to add inmate electronic correspondence. While we currently 
allow inmates in CMUs access to electronic correspondence in the same 
manner permitted for general population inmates, electronic 
correspondence is not specifically mentioned by regulation because it 
is currently included under the authority of ``general mail'' 
correspondence. We therefore do not make this edit to the regulations.
    One inmate stated that ``the designation criteria described in 
section 540.201, sections (a) and (b) permit the BOP to confine and 
[sic] inmate to a CMU merely on the basis of his offense of conviction. 
This is unwise policy because, as in my case, an inmate's offense alone 
provides a very limited glimpse of that individual and what level of 
security measures he may require.'' The inmate also stated that the 
criteria listed in the proposed rule are unlawful ``because 18 U.S.C. 
Sec. 3621(b) requires the BOP to consider five factors when designating 
a prisoner's place of confinement; these include the offense of 
conviction, but also, inter alia, the history and characteristics of 
the prisoner and the sentencing court's recommendation.'' We do not 
designate an inmate to the CMU solely on the basis of the criteria 
described in Sec.  540.201. Rather, if a factor listed in Sec.  540.201 
is found to be present, the Bureau's Assistant Director, Correctional 
Programs Division, is required to conduct a review of the evidence, and 
make a conclusion that the inmate's designation to a CMU is necessary 
to ensure the safety, security, and orderly operation of correctional 
facilities, or protection of the public. This procedure is described in 
Sec.  540.202(b). The use of the criteria listed in Sec.  540.201 does 
not preclude consideration of the five factors in 18 U.S.C. Sec. 
3621(b), rather, it supplements or details that consideration process. 
The Assistant Director must consider the inmate's circumstances as a 
whole, not rely solely on the presence of one criteria listed in Sec.  
540.201.
    The same commenter stated that ``[t]he responsibility for 
designation of inmates for SAMs or SAMs-like restrictions should remain 
with the Attorney General or FBI and not with the BOP.'' As we stated 
in the 2010 proposed rule, this regulation will be applied differently 
from regulations in 28 CFR part 501, which authorize the Attorney 
General to impose special administrative measures (SAMs). Under the 
CMUs regulations, the Bureau would impose communication limits based on 
evidence from the FBI or another federal law enforcement agency, or if 
Bureau information indicates a similar need to impose communication 
restrictions but does not constitute evidence which rises to the same 
degree of potential risk to national security or acts of violence or 
terrorism which would warrant the Attorney General's intervention 
through a SAM. Further, while SAMs potentially restrict communication 
entirely, CMUs regulations delineate a floor of limited communication 
beneath which the Bureau cannot restrict unless precipitated by the 
inmate's violation of imposed limitations, and then only as a 
disciplinary sanction following due process procedures in 28 CFR part 
541.
    Several commenters requested that we exempt inmates with ties to 
animal rights causes from CMU consideration. We will not favor a group 
of inmates based upon political affiliation or membership in a group, 
just as we do not discriminate based upon such factors. We will not 
make these edits.
    One commenter stated that the CMU restrictions violate Article 3 of 
the Geneva Convention. This article applies ``in the case of armed 
conflict not of an international character'', which is not applicable 
in the situation of inmates in CMUs, and refers to ``violence to life 
and person, in particular, murder of all kinds, cruel treatment and 
torture'', which, also, is inapplicable in this situation. If the 
commenter's concern is that CMU restrictions are cruel treatment or 
torture, our analysis of the Eighth Amendment of the U.S. Constitution 
earlier in this document applies.
    One commenter suggested that ``a review panel of 9 to 13 members 
whose majority are U.S. citizens not affiliated with the prison or any 
federal, state, or county agency (including law enforcement agencies) 
should be put in place to approve or disapprove of the initial 
assignment of a prisoner to a CMU and of the continuation of a 
prisoner's assignment to a CMU after each 28 days spent in a CMU.'' 
This suggestion is impracticable because the Bureau does not use, nor 
is it statutorily authorized to use, citizen groups for federal inmate 
designation. Two commenters suggested that ``CMUs should be required to 
keep a secure log of all CMU-assignment and CMU-release decisions and 
the rationale for each decision regarding prisoner assignment or 
release from a CMU.'' The Bureau currently maintains such assignment, 
release and rationale information securely, although not in in the 
``log'' form that the commenter suggests. The commenters also suggest 
that such information about inmates in CMUs ``should be made available 
upon request to family members of the prisoner or to attorneys working 
on behalf of the prisoner.'' The commenters would also request that, 
``[e]ach month a statistical summary of the number of prisoners in CMUs 
or the number of prisoners moved to or released from a CMU should be 
made available publicly on an Internet site.'' Information regarding 
inmates is protected by the Freedom of Information Act and Privacy Act, 
and is accessible through procedures authorized by those statutes under 
28 CFR part 513, regarding access to records.
    Finally, a large number of commenters mistakenly believed that the 
proposed rule would permit ``experimentation'' on inmates in CMUs. This 
is simply untrue. As stated in Sec.  540.200(c), ``[t]he purpose of 
CMUs is to provide an inmate housing unit environment that enables 
staff to more effectively monitor communication between inmates in CMUs 
and persons in the community.'' Neither the proposed rule nor the 
preamble to the proposed rule mention experimentation on inmates, nor 
does the Bureau intend to conduct experiments on inmates in CMUs.
    For the aforementioned reasons, the Bureau finalizes the 
regulations

[[Page 3177]]

proposed on April 6, 2010 (75 FR 17324), with minor changes.

Executive Order 13563 and 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. CMUs are set up in currently existing facilities, utilizing 
currently existing staff and resources, and no new staff and resources 
are required to implement these regulations. In fact, placing inmates 
who require communication restrictions together in a CMU decreases 
costs related to translation, technology use, and use of other such 
monitoring resources that had previously been spread throughout the 
Bureau in order to enable communication restrictions on inmates in 
general population facilities. CMUs enable the Bureau to pool such 
resources and concentrate them in the CMU locations. This regulation 
benefits public safety by minimizing the risk of dangerous 
communication to or from inmates in Bureau custody. This regulation 
clarifies the Bureau's current authority to limit and monitor the 
communication of inmates in CMUs, but maintains the ability of these 
inmates to maintain family ties and access to courts and other 
government officials. This permits inmates to raise issues related to 
their incarceration or their conditions of confinement, while 
minimizing potential internal or external threats.

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 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.

Charles E. Samuels, Jr.,
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 amend 28 CFR part 540 as follows.

PART 540--CONTACT WITH PERSONS IN THE COMMUNITY

0
1. The authority citation for 28 CFR part 540 continues 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.

0
2. Add a new subpart J, to read as follows:
Subpart J--Communications Management Housing Units
Sec.
540.200 Purpose and scope.
540.201 Designation criteria.
540.202 Designation procedures.
540.203 Written correspondence limitations.
540.204 Telephone communication limitations.
540.205 Visiting limitations.

Subpart J--Communications Management Housing Units

Sec.  540.200  Purpose and scope.

    (a) Purpose of this subpart. This subpart defines the Federal 
Bureau of Prisons' (Bureau) authority to operate, and designate inmates 
to, Communications Management Housing Units (CMUs) within Bureau 
facilities.
    (b) CMU. A CMU is a general population housing unit where inmates 
ordinarily reside, eat, and participate in all educational, 
recreational, religious, visiting, unit management, and work 
programming, within the confines of the CMU. Additionally, CMUs may 
contain a range of cells dedicated to segregated housing of inmates in 
administrative detention or disciplinary segregation status.
    (c) Purpose of CMUs. The purpose of CMUs is to provide an inmate 
housing unit environment that enables staff to more effectively monitor 
communication between inmates in CMUs and persons in the community. The 
ability to monitor such communication is necessary to ensure the 
safety, security, and orderly operation of correctional facilities, and 
protection of the public. The volume, frequency, and methods, of CMU 
inmate contact with persons in the community may be limited as 
necessary to achieve the goal of total monitoring, consistent with this 
subpart.
    (d) Application. Any inmate (as defined in 28 CFR 500.1(c)) meeting 
criteria prescribed by this subpart may be designated to a CMU.
    (e) Relationship to other regulations. The regulations in this 
subpart supersede and control to the extent they conflict with, are 
inconsistent with, or impose greater limitations than the regulations 
in this part, or any other regulations in this chapter, except 28 CFR 
part 501.

Sec.  540.201  Designation criteria.

    Inmates may be designated to a CMU if evidence of the following 
criteria exists:
    (a) The inmate's current offense(s) of conviction, or offense 
conduct, included association, communication, or involvement, related 
to international or domestic terrorism;
    (b) The inmate's current offense(s) of conviction, offense conduct, 
or activity

[[Page 3178]]

while incarcerated, indicates a substantial likelihood that the inmate 
will encourage, coordinate, facilitate, or otherwise act in furtherance 
of illegal activity through communication with persons in the 
community;
    (c) The inmate has attempted, or indicates a substantial likelihood 
that the inmate will contact victims of the inmate's current offense(s) 
of conviction;
    (d) The inmate committed prohibited activity related to misuse or 
abuse of approved communication methods while incarcerated; or
    (e) There is any other substantiated/credible evidence of a 
potential threat to the safe, secure, and orderly operation of prison 
facilities, or protection of the public, as a result of the inmate's 
communication with persons in the community.

Sec.  540.202  Designation procedures.

    Inmates may be designated to CMUs only according to the following 
procedures:
    (a) Initial consideration. Initial consideration of inmates for CMU 
designation begins when the Bureau becomes aware of information 
relevant to the criteria described in Sec.  540.201.
    (b) Assistant Director authority. The Bureau's Assistant Director, 
Correctional Programs Division, has authority to approve CMU 
designations. The Assistant Director's decision must be based on a 
review of the evidence, and a conclusion that the inmate's designation 
to a CMU is necessary to ensure the safety, security, and orderly 
operation of correctional facilities, or protection of the public.
    (c) Written notice. Upon arrival at the designated CMU, inmates 
will receive written notice from the facility's Warden explaining that:
    (1) Designation to a CMU allows greater Bureau staff management of 
communication with persons in the community through complete monitoring 
of telephone use, written correspondence, and visiting. The volume, 
frequency, and methods of CMU inmate contact with persons in the 
community may be limited as necessary to achieve the goal of total 
monitoring, consistent with this subpart;
    (2) General conditions of confinement in the CMU may also be 
limited as necessary to provide greater management of communications;
    (3) Designation to the CMU is not punitive and, by itself, has no 
effect on the length of the inmate's incarceration. Inmates in CMUs 
continue to earn sentence credit in accordance with the law and Bureau 
policy;
    (4) Designation to the CMU follows the Assistant Director's 
decision that such placement is necessary for the safe, secure, and 
orderly operation of Bureau institutions, or protection of the public. 
The inmate will be provided an explanation of the decision in 
sufficient detail, unless the Assistant Director determines that 
providing specific information would jeopardize the safety, security, 
and orderly operation of correctional facilities, or protection of the 
public;
    (5) Continued designation to the CMU will be reviewed regularly by 
the inmate's Unit Team under circumstances providing the inmate notice 
and an opportunity to be heard, in accordance with the Bureau's policy 
on Classification and Program Review of Inmates;
    (6) The inmate may challenge the CMU designation decision, and any 
aspect of confinement therein, through the Bureau's administrative 
remedy program.

Sec.  540.203  Written correspondence limitations.

    (a) General correspondence. General written correspondence as 
defined by this part, may be limited to six pieces of paper (not larger 
than 8.5 x 11 inches), double-sided writing permitted, once per 
calendar week, to and from a single recipient at the discretion of the 
Warden, except as stated in (c) below. This correspondence is subject 
to staff inspection for contraband and for content.
    (b) Special mail. (1) Special mail, as defined in this part, is 
limited to privileged communication with the inmate's attorney.
    (2) All such correspondence is subject to staff inspection in the 
inmate's presence for contraband and to ensure its qualification as 
privileged communication with the inmate's attorney. Inmates may not 
seal such outgoing mail before giving it to staff for processing. After 
inspection for contraband, the inmate must then seal the approved 
outgoing mail material in the presence of staff and immediately give 
the sealed material to the observing staff for further processing.
    (c) Frequency and volume limitations. Unless the quantity to be 
processed becomes unreasonable or the inmate abuses or violates these 
regulations, there is no frequency or volume limitation on written 
correspondence with the following entities:
    (1) U.S. courts;
    (2) Federal judges;
    (3) U.S. Attorney's Offices;
    (4) Members of U.S. Congress;
    (5) The Bureau of Prisons;
    (6) Other federal law enforcement entities; or
    (7) The inmate's attorney (privileged communications only).
    (d) Electronic messaging may be limited to two messages, per 
calendar week, to and from a single recipient at the discretion of the 
Warden.

Sec.  540.204  Telephone communication limitations.

    (a) Monitored telephone communication may be limited to immediate 
family members only. The frequency and duration of telephone 
communication may also be limited to three connected calls per calendar 
month, lasting no longer than 15 minutes. The Warden may require such 
communication to be in English, or translated by an approved 
interpreter.
    (b) Unmonitored telephone communication is limited to privileged 
communication with the inmate's attorney. Unmonitored privileged 
telephone communication with the inmate's attorney is permitted as 
necessary in furtherance of active litigation, after establishing that 
communication with the verified attorney by confidential correspondence 
or visiting, or monitored telephone use, is not adequate due to an 
urgent or impending deadline.

Sec.  540.205  Visiting limitations.

    (a) Regular visiting may be limited to immediate family members. 
The frequency and duration of regular visiting may also be limited to 
four one-hour visits each calendar month. The number of visitors 
permitted during any visit is within the Warden's discretion. Such 
visits must occur through no-contact visiting facilities.
    (1) Regular visits may be simultaneously monitored and recorded, 
both visually and auditorily, either in person or electronically.
    (2) The Warden may require such visits to be conducted in English, 
or simultaneously translated by an approved interpreter.
    (b) Attorney visiting is limited to attorney-client privileged 
communication as provided in this part. These visits may be visually, 
but not auditorily, monitored. Regulations and policies previously 
established under 28 CFR part 543 are applicable.
    (c) For convicted inmates (as defined in 28 CFR part 551), 
regulations and policies previously established under 28 CFR part 543 
are applicable.

[FR Doc. 2015-01024 Filed 1-21-15; 8:45 am]
BILLING CODE 4410-05-P
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