19932 Federal Register / Vol. 77, No. 64 / Tuesday, April 3, 2012 / Rules and Regulations 

radius of Boyne City Municipal Airport, and 

within 2 miles each side of the 080 degree 

bearing from the airport extending from the 

9.9-mile radius to 11.9 miles east of the 

airport. 

Issued in Fort Worth, Texas, on March 26, 

2012. 

Walter L. Tweedy, 

Acting Manager, Operations Support Group, 

ATO Central Service Center. 

[FR Doc. 2012–7932 Filed 4–2–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF JUSTICE 

Bureau of Prisons 

28 CFR Part 540 

[BOP–1149–F] 

RIN 1120–AB49 

Inmate Communication With News 

Media: Removal of Byline Regulations 

AGENCY: Bureau of Prisons, Justice. 

ACTION: Final rule. 

SUMMARY: In this document, the Bureau 

of Prisons (Bureau) finalizes an interim 

rule published April 23, 2010, regarding 

inmate contact with the community 

which deleted two previous Bureau 

regulations that prohibited inmates from 

publishing under a byline, due to a 

recent court ruling invalidating Bureau 

regulation language containing this 

prohibition. 

DATES: This rule is effective on May 3, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Qureshi, Office of General 

Counsel, Bureau of Prisons, phone (202) 

307–2105. 

SUPPLEMENTARY INFORMATION: In this 

document, the Bureau of Prisons 

(Bureau) finalizes an interim rule 

regarding inmate contact with the 

community which deleted two previous 

Bureau regulations that prohibited 

inmates from publishing under a byline, 

due to a recent court ruling invalidating 

Bureau regulation language containing 

this prohibition. The interim rule was 

published on April 23, 2010 (75 FR 

21163), and a technical correction 

(correcting the effective date of the 

interim rule to May 7, 2010) was 

published on May 7, 2010 (75 FR 

25110). We received one comment on 

the interim rule, which we address 

below. 

The commenter first objected to the 

Bureau’s interim rule as having been 

promulgated incorrectly under the 

Administrative Procedure Act (APA) (5 

U.S.C. 553, et seq.). The commenter 

stated that the Bureau did not articulate 

‘‘good cause’’ under the APA to forego 

normal notice-and-comment rulemaking 

procedures. 

In response, the Bureau explained its 

‘‘good cause’’ in the interim rule. The 

Bureau stated that the APA (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.’’ The 

Bureau indicated it would be 

impracticable to invite public comment 

on the result of a court order 

invalidating a regulatory provision 

because prompt implementation of the 

court order was necessary to afford 

inmates the benefit of the court’s 

decision and to protect the Bureau from 

liability arising from potential 

application of an invalidated regulation. 

The commenter states that it was not 

enough for the Bureau to recognize that 

the court in Jordan v. Pugh, 504 

F.Supp.2d 1109 (D. Colo. 2007), issued 

a decision invalidating the byline 

language of § 540.20(b). In the interim 

rule, the Bureau stated that 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 

commenter posits that the Bureau 

should have mentioned the ultimate 

holding in that case. We therefore do so 

below. The Jordan court held as follows: 

Court concludes that the Byline Regulation 

violates the First Amendment rights of Mr. 

Jordan, other inmates in federal institutions, 

and the press * * * 

It is therefore ordered that judgment shall 

enter in favor of the Plaintiff, Mark Jordan, 

and against the Defendants, Michael V. Pugh, 

J. York, R.E. Derr, B. Sellers, and Stanley 

Rowlett, in their official capacities: 

(1) Declaring that the language of 28 CFR 

540.20(b), ‘‘The inmate may not * * * 

publish under a byline’’, violates the First 

Amendment to the United States 

Constitution; and 

(2) Enjoining the Federal Bureau of Prisons 

from punishing any inmate for violation of 28 

CFR 540.20(b)’s provision that: ‘‘The inmate 

may not * * * publish under a byline.’’ 

Id. at 1126. 

In so holding, the court invalidated 28 

CFR 540.20(b)’s ‘‘byline’’ language, a 

fact that the Bureau indicated in the 

preamble to the interim rule. The 

commenter states that ‘‘rulemaking 

prompted by a significant court ruling 

that holds that a regulation ‘violates the 

First Amendment rights’ of the press 

deserves the full notice-and-comment 

process specified by law, so that the 

public may review the Court’s ruling, 

evaluate the Bureau’s response, and 

comment.’’ The commenter cites to no 

authority for this statement, and does 

not take into consideration that the 

public was able to review the decision 

when it was published in 2007. The 

Bureau’s response is simple—remove 

the invalidated regulations. The public 

was given the opportunity to comment 

on the Bureau’s action during the 

comment period for the interim rule. 

The commenter also rejects the 

Bureau’s statement that the interim rule 

was necessary to protect the Bureau 

from liability arising from potential 

application of an invalidated regulation 

because the interim rule was published 

in 2010 whereas the decision was 

published in 2007. The commenter 

states that the Bureau should have 

issued a notice to Bureau staff in 2007 

to not enforce the invalidated 

regulations. The Bureau did, in fact, 

issue mandatory guidance to its staff on 

November 27, 2007, which stated that 

the Bureau 

is revising these regulations to remove the 

byline provision invalidated by the court. 

Until that occurs, however, an inmate’s 

publishing under a byline, by itself, can no 

longer support disciplinary action * * * 

[W]hile the court expressly limited its 

holding only to the byline language of 

§ 540.20(b), neither should Bureau staff 

discipline inmates for publishing under a 

byline under the identical provision in 

§ 540.62(d). 

The commenter then argues that the 

provision in the rule stating that 

inmates may not act as reporters violates 

the First Amendment of the U.S. 

Constitution. We note that this 

provision was unchanged by the interim 

rule. However, the commenter indicates 

that ‘‘[b]y repealing the ‘byline 

language’ and leaving the prohibition on 

acting as a reporter, the Bureau has not 

correctly responded to the holding of 

the Jordan case.’’ 

We note that the holding in Jordan 

was limited to invalidation of the 

‘‘byline’’ language, not the ‘‘reporter’’ 

language. In Jordan, the court referred to 

a memorandum issued by the Bureau’s 

Office of General Counsel on October 

20, 2006, in which the Bureau clarified 

to staff that ‘‘acting as a reporter’’ means 

doing so ‘‘on a regular or repeated 

basis,’’ as opposed to a one-time 

publication under a byline. This is an 

important distinction because regular, 

repeated, compensated activity as a 

reporter signifies that the inmate is 

conducting a business, which is 

prohibited by the Bureau’s inmate 

discipline regulations. Prevention of 

conducting a business was recognized 

by the Jordan court as a ‘‘legitimate 

penological objective.’’ Id. at 1123. 


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Federal Register / Vol. 77, No. 64 / Tuesday, April 3, 2012 / Rules and Regulations 19933 

Also, the court noted that the 

plaintiff, a federal inmate, had ‘‘never 

acted, requested to act or has been 

requested to act as a reporter,’’ and 

therefore chose to restrict its decision to 

the ‘‘byline’’ language without 

addressing the ‘‘reporter’’ language. In 

footnote 25, the court stated that the 

reporter ‘‘portion of the regulation is not 

before the Court.’’ Further, when the 

Bureau attempted to justify the ‘‘byline’’ 

language by indicating that publishing 

under a byline amounts to unauthorized 

conducting of a business, the court 

stated as follows: 

[T]his argument would carry more weight 

if the Court were addressing the portion of 

the Byline Regulation prohibiting inmates 

from acting as reporters. The role of a 

reporter envisions a relationship between the 

news media and the inmate, for which the 

inmate is compensated. But the scope of this 

lawsuit does not include the reporter portion 

of the regulation, and the danger of an inmate 

conducting a business simply because the 

inmate publishes a writing under a byline in 

the news media is much more remote. 

Id. at 1123. 

The court’s recognition of the 

distinction between ‘‘publishing under a 

byline’’ and ‘‘acting as a reporter’’ is 

clear from the language of the Jordan 

opinion. Likewise, the court’s 

recognition of this distinction is clear in 

its holding invalidating only the 

‘‘byline’’ portion of the regulation but 

not the ‘‘reporter’’ portion. We therefore 

decline to remove the provision in the 

regulation prohibiting acting as a 

reporter. 

For the aforementioned reasons, the 

interim rule published on April 23, 

2010 (75 FR 21163), is hereby finalized 

without change. 

Executive Order 12866 

This regulation does not fall 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 not 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 § 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 foreignbased companies in domestic and 

export markets. 

List of Subjects in 28 CFR Part 540 

Prisoners. 

For the aforementioned reasons, the 

interim rule published on April 23, 

2010 (75 FR 21163), is hereby finalized 

without change. 

Charles E. Samuels, Jr., 

Director, Bureau of Prisons. 

[FR Doc. 2012–7971 Filed 4–2–12; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

Bloodborne Pathogens Standard; 

Corrections and Technical Amendment 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule; corrections and 

technical amendment. 

SUMMARY: OSHA is making a technical 

amendment to its Bloodborne Pathogens 

Standard by moving the rule’s 

paragraph on sharps injury log 

requirements from paragraph (i), 

entitled ‘‘Dates,’’ to paragraph (h), 

entitled ‘‘Recordkeeping.’’ 

DATES: The effective date for the 

corrections and technical amendment to 

the standard is April 3, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Press inquiries: Frank Meilinger, 

Director, Office of Communications, 

OSHA, U.S. Department of Labor, Room 

N–3647, 200 Constitution Avenue NW., 

Washington, DC 20210; telephone: (202) 

693–1999. 

General and technical information: 

Andrew Levinson, Director, OSHA 

Office of Biological Hazards, OSHA, 

Room N–3718, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Washington, DC 20210; telephone: (202) 

693–1950. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On January 18, 2001, OSHA revised 

the Bloodborne Pathogens Standard (29 

CFR 1910.1030) to include requirements 

of the Needlestick Safety and Prevention 

Act, November 6, 2000 (Pub. L. 106– 

430). These revisions included adding a 

fifth subparagraph, entitled ‘‘Sharps 

injury log,’’ to paragraph (h) of 

§ 1910.1030 (66 FR 5325). However, in 

the July 1, 2001, publication of the CFR, 

subparagraph (5) was under paragraph 

(i) (‘‘Dates’’). These corrections and 

technical amendment relocate 

subparagraph (5) under paragraph (h) 

(‘‘Recordkeeping’’). 

List of Subjects in 29 CFR Part 1910 

Hazardous substances, Occupational 

safety and health, Reporting and 

recordkeeping requirements. 

III. Authority and Signature 

David Michaels, MPH, Ph.D., 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Washington, DC 20210, 


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