Federal Register / Vol. 77, No. 64 / Tuesday, April 3, 2012 / Rules and Regulations 19931 

scope of that authority as it amends 

controlled airspace at Tobe, CO. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of the Federal Aviation 

Administration Order 7400.9V, Airspace 

Designations and Reporting Points, 

dated August 9, 2011, and effective 

September 15, 2011 is amended as 

follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

ANM CO E5 Tobe, CO [Modified] 

Tobe VOR/DME 

(Lat. 37°15′31′′ N., long. 103°36′00′′ W.) 

That airspace north of the Tobe VOR/DME 

extending upward from 8,500 feet MSL, 

bounded on the north by V–210, on the 

southeast by V–263, and on the west by 

V–389. 

Issued in Seattle, Washington, on March 

26, 2012. 

Robert Henry, 

Acting Manager, Operations Support Group, 

Western Service Center. 

[FR Doc. 2012–7939 Filed 4–2–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2011–0828; Airspace 

Docket No. 11–AGL–16] 

Establishment of Class E Airspace; 

Boyne City, MI 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action establishes Class 

E airspace at Boyne City, MI. Controlled 

airspace is necessary to accommodate 

new Area Navigation (RNAV) Standard 

Instrument Approach Procedures at 

Boyne City Municipal Airport. The FAA 

is taking this action to enhance the 

safety and management of Instrument 

Flight Rule (IFR) operations at the 

airport. 

DATES: Effective date: 0901 UTC, May 

31, 2012. The Director of the Federal 

Register approves this incorporation by 

reference action under 1 CFR part 51, 

subject to the annual revision of FAA 

Order 7400.9 and publication of 

conforming amendments. 

FOR FURTHER INFORMATION CONTACT: 

Scott Enander, Central Service Center, 

Operations Support Group, Federal 

Aviation Administration, Southwest 

Region, 2601 Meacham Blvd., Fort 

Worth, TX 76137; telephone (817) 321– 

7716. 

SUPPLEMENTARY INFORMATION: 

History 

On November 28, 2011, the FAA 

published in the Federal Register a 

notice of proposed rulemaking (NPRM) 

to amend Class E airspace for the Boyne 

City, MI, area, creating additional 

controlled airspace at Boyne City 

Municipal Airport (76 FR 72868) Docket 

No. FAA–2011–0828. Interested parties 

were invited to participate in this 

rulemaking effort by submitting written 

comments on the proposal to the FAA. 

No comments were received. Class E 

airspace designations are published in 

paragraph 6005 of FAA Order 7400.9V 

dated August 9, 2011, and effective 

September 15, 2011, which is 

incorporated by reference in 14 CFR 

Part 71.1. The Class E airspace 

designations listed in this document 

will be published subsequently in the 

Order. 

The Rule 

This action amends Title 14 Code of 

Federal Regulations (14 CFR) Part 71 by 

establishing Class E airspace extending 

upward from 700 feet above the surface 

to accommodate new standard 

instrument approach procedures at 

Boyne City Municipal Airport, Boyne 

City, MI. This action is necessary for the 

safety and management of IFR 

operations at the airport. 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current. Therefore, this regulation: (1) Is 

not a ‘‘significant regulatory action’’ 

under Executive Order 12866; (2) is not 

a ‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities under the 

criteria of the Regulatory Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the U.S. Code. Subtitle 1, 

Section 106, describes the authority of 

the FAA Administrator. Subtitle VII, 

Aviation Programs, describes in more 

detail the scope of the agency’s 

authority. This rulemaking is 

promulgated under the authority 

described in Subtitle VII, Part A, 

Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it established 

controlled airspace at Boyne City 

Municipal Airport, Boyne City, MI. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR Part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

Part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR Part 71.1 of the Federal Aviation 

Administration Order 7400.9V, Airspace 

Designations and Reporting Points, 

dated August 9, 2011, and effective 

September 15, 2011, is amended as 

follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface. 

* * * * * 

AGL MI E5 Boyne City, MI [New] 

Boyne City Municipal Airport, MI 

(Lat. 45°12′32′′ N., long. 84°59′24′′ W.) 

That airspace extending upward from 700 

feet above the surface within a 9.9-mile 


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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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