65184 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP–1048–F]

RIN 1120–AA48

Correspondence: Restricted Special

Mail Procedures

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

SUMMARY: In this document, the Bureau

of Prisons is amending its regulations on

correspondence to provide for restricted

special mail procedures in instances

where the Warden has reason to believe

that the special mail either has posed a

threat or may pose a threat of physical

harm to the intended recipient. Under

these procedures, such special mail is

subject to inspection, in the presence of

the inmate, for contraband and, at the

request of the intended recipient, may

be read for the purpose of verifying that

the special mail does not contain a

threat of physical harm. These

amendments are intended to provide for

the continued efficient and secure

operation of the institution and to

protect the public.

EFFECTIVE DATE: January 9, 1998.

ADDRESSES: Office of General Counsel,

Bureau of Prisons, HOLC Room 754, 320

First Street, NW., Washington, DC

20534.

FOR FURTHER INFORMATION CONTACT: Roy

Nanovic, Office of General Counsel,

Bureau of Prisons, phone (202) 514–

6655.

SUPPLEMENTARY INFORMATION: The

Bureau of Prisons is amending its

regulations on correspondence (28 CFR

part 540). A proposed rule on this

subject was published in the Federal

Register February 14, 1996 (61 FR

5846).

Provisions in § 540.18(c) previously

stated that outgoing special mail may be

sealed by the inmate and is not subject

to inspection. The Bureau proposed a

revised paragraph (c) to allow for

restricted special mail procedures for

special mail addressed to Federal court

officials and members of Congress, and,

if so requested, to other intended

recipients. These restricted special mail

procedures would apply in cases where

the Warden (with the concurrence of the

Regional Counsel) documents in writing

that the inmate’s special mail either has

posed a threat or may pose a threat of

physical harm to the intended recipient.

Any inmate placed on restricted special

mail status would be notified in writing

by the Warden of the reason for being

so placed. The Warden is required to

review an inmate’s restricted special

mail status at least once every 180 days

and to notify the inmate in writing of

the results of that review. The inmate

may be removed from restricted special

mail status if the Warden (with the

concurrence of the Regional Counsel)

determines that the inmate’s special

mail does not threaten or pose a threat

of physical harm to the intended

recipient. Such determinations are

based on a comprehensive review of

pertinent factors, such as the inmate’s

institutional adjustment, institution

security level, and a current assessment

of the conditions which led to the

inmate’s placement into restricted

special mail status.

The Bureau received 8 comments on

its proposed rule. Comment generally

focused on the purported need for the

proposed restrictions, possible

infringement on the confidentiality of

the attorney-client privilege, possible

delay in handling mail being sent to

courts, consideration of other means of

dealing with the threat posed by such

special mail (including duplicative

security measures in place for

recipients), ulterior motivation for the

restrictions, and the general futility of

preventing abuse.

With respect to the need for the

regulation, the Bureau disagrees with

suggestions that the rule misrepresents

its intent. The rule is not intended to

restrict an inmate’s legal access. Instead,

it is intended to help ensure institution

security, discipline, and good order, and

to protect the public. The Bureau notes

that instances have occurred where

special mail has caused, or has

threatened physical injury to the

recipient. While these instances may not

constitute a widespread problem,

neither do the procedures for restricted

special mail status pose any change to

the special mail privilege for the vast

majority of inmates. Even so, for the

purpose of assuring its commitment to

the integrity of special mail, the Bureau

has modified the proposed procedures

to protect the special mail privilege to

the extent practicable and

commensurate with the need for the

security, discipline and good order of

the institution.

As previously proposed, the

procedures apply only to inmates who

have been placed on restricted special

mail status (that is to say, those inmates

whose special mail has been

documented by the Warden, with the

concurrence of the Regional Counsel,

either to have posed a threat or which

may pose a threat to the recipient). An

inmate in this status must present all

materials and packaging intended to be

sent as special mail to staff for

inspection. Staff shall inspect the

special mail material and packaging, in

the presence of the inmate, for

contraband. This last provision deletes

the proposed phrase ‘‘or the threat of

physical harm’’, as its intent is

encompassed within the remaining

provision of inspecting for contraband.

This change addresses the concern of

commenters that the proposed

procedure infringes upon the

confidentiality of the attorney-client

privilege or access to the courts. As

revised, the rule now states that staff

reading of the correspondence is

restricted to when the recipient of the

special mail has so requested (the rule

as proposed had assumed such

permission with respect to Federal court

officials and members of Congress). As

revised, the procedure now more closely

parallels the process for inspecting

incoming special mail (see § 540.18).

Upon completion of the inspection,

staff shall return the special mail

material to the inmate if the material

does not contain contraband or, when

requested by the intended recipient, a

reading determines that there is no

threat of physical harm. The inmate

must then seal the special mail material

in the presence of staff. Special mail

determined to pose a threat shall be

forwarded to the appropriate law

enforcement entity, and staff shall send

a copy of the material, minus the

contraband, to the intended recipient

along with notification that the original

of the material was forwarded to the

appropriate law enforcement entity.

In response to comments, the Bureau

does not expect this procedure to have

much impact on the processing of

special mail. The limited applicability

of the rule and the general Bureau

policy that mail be handled promptly

should ensure that this mail is

processed in a timely fashion.

In response to commenters who

suggested that sufficient and less

restrictive means were available to the

intended recipients of special mail to

address threats posed by the special

mail, the Bureau believes its procedures

are both prudent and unobstrusive.

Visually observing the assembling of

special mail serves to deter the actual

transmission of dangerous materials and

is compatible with the existing

procedures for handling incoming

special mail (see § 540.18). This protects

both the intended recipient and other

persons involved in the delivery or

opening of the special mail. While the

Bureau acknowledges, as one

commenter noted, that this procedure

may not be successful in preventing

every possible instance of harm, the
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations 65185

procedure is intended to operate in

conjunction with other procedures, such

as the ones alluded to by other

commenters. Any resultant increase in

security which may be obtained through

these new procedures clearly is a benefit

to the public.

Several commenters expressed

concern that Bureau of Prisons staff may

abuse their discretion under this

provision. As shown, the scope of this

rule is clearly limited in its application.

Bureau of Prisons staff are professionals

and will be familiar with the procedures

for applying this rule. In the unlikely

event of staff abuse, appropriate

disciplinary action will be initiated and

appropriate sanctions imposed.

Other commenters raised questions on

the general provisions for screening,

e.g., how it will be requested, criteria

used for assessing threat. In response to

such comments, the Bureau again notes

that this rule will have limited

applicability, with such application

governed by § 540.18(c)(2). Placement

requires legal review, and notification to

the inmate of the reasons for placement.

An inmate who disagrees with this

decision may appeal the decision

through the Administrative Remedy

Program (28 CFR part 542).

A commenter questioned the

statement in § 540.18(d) advising the

recipient of special mail that if the

writer raises a question over which the

facility has jurisdiction, the recipient

may wish to return the material for

further information or clarification. The

commenter believes that this provision

is vague, and that it either should be

deleted or specify the return is to the

inmate. The Bureau disagrees with this

suggestion. This statement is not new

and is intended to offer the recipient the

opportunity to contact the Bureau of

Prisons if that recipient desires further

information or clarification over a

matter under the Bureau’s jurisdiction.

The choice on whether this is done is

clearly with the recipient of the special

mail, and is not violative of an inmate’s

legal rights.

As a final general comment, the

Bureau notes that the provisions for

restricted special mail are designed to

protect the public and are not motivated

by a desire to censor special mail. The

procedures for visually observing the

assembling of special mail are not

dissimilar to procedures already in

place for the delivery of special mail.

Neither inspection represents any

attempt to censor mail. In those

instances where the intended recipient

has authorized staff to read the special

mail (see § 540.18(c)(2)(iii)), the special

mail, or a copy of the special mail in

cases where the mail has been

determined to pose a threat of physical

harm, is forwarded to the recipient.

The Bureau of Prisons has determined

that this rule is not a significant

regulatory action for the purpose of E.O.

12866, and accordingly this rule was not

reviewed by the Office of Management

and Budget. After review of the law and

regulations, the Director, Bureau of

Prisons has certified that this rule, for

the purpose of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), does not have

a significant economic impact on a

substantial number of small entities,

within the meaning of the Act. Because

this rule pertains to the correctional

management of offenders committed to

the custody of the Attorney General or

the Director of the Bureau of Prisons, its

economic impact is limited to the

Bureau’s appropriated funds.

List of Subjects in 28 CFR Part 540

Prisoners.

Kathleen M. Hawk,

Director, Bureau of Prisons.

Accordingly, pursuant to the

rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and

delegated to the Director, Bureau of

Prisons in 28 CFR 0.96(p), part 540 in

subchapter C of 28 CFR, chapter V is

amended as set forth below.

SUBCHAPTER C—INSTITUTIONAL

MANAGEMENT

PART 540—CONTACT WITH PERSONS

IN THE COMMUNITY

1. The authority citation for 28 CFR

part 540 is revised 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; 28 CFR 0.95–0.99.

2. In § 540.18, paragraphs (c) and (d)

are revised to read as follows:

§ 540.18 Special mail.

* * * * *

(c)(1) Except as provided for in

paragraph (c)(2) of this section, outgoing

special mail may be sealed by the

inmate and is not subject to inspection.

(2) Special mail shall be screened in

accordance with the provisions of

paragraph (c)(2)(iii) of this section when

the special mail is being sent by an

inmate who has been placed on

restricted special mail status.

(i) An inmate may be placed on

restricted special mail status if the

Warden, with the concurrence of the

Regional Counsel, documents in writing

that the special mail either has posed a

threat or may pose a threat of physical

harm to the recipient (e.g., the inmate

has previously used special mail to

threaten physical harm to a recipient).

(ii) The Warden shall notify the

inmate in writing of the reason the

inmate is being placed on restricted

special mail status.

(iii) An inmate on restricted special

mail status must present all materials

and packaging intended to be sent as

special mail to staff for inspection. Staff

shall inspect the special mail material

and packaging, in the presence of the

inmate, for contraband. If the intended

recipient of the special mail has so

requested, staff may read the special

mail for the purpose of verifying that the

special mail does not contain a threat of

physical harm. Upon completion of the

inspection, staff shall return the special

mail material to the inmate if the

material does not contain contraband, or

contain a threat of physical harm to the

intended recipient. The inmate must

then seal the special mail material in the

presence of staff and immediately give

the sealed special mail material to the

observing staff for delivery. Special mail

determined to pose a threat to the

intended recipient shall be forwarded to

the appropriate law enforcement entity.

Staff shall send a copy of the material,

minus the contraband, to the intended

recipient along with notification that the

original of the material was forwarded

to the appropriate law enforcement

entity.

(iv) The Warden shall review an

inmate’s restricted special mail status at

least once every 180 days. The inmate

is to be notified of the results of this

review. An inmate may be removed

from restricted special mail status if the

Warden determines, with the

concurrence of the Regional Counsel,

that the special mail does not threaten

or pose a threat of physical harm to the

intended recipient.

(v) An inmate on restricted mail status

may seek review of the restriction

through the Administrative Remedy

Program.

(d) Except for special mail processed

in accordance with paragraph (c)(2) of

this section, staff shall stamp the

following statement directly on the back

side of the inmate’s outgoing special

mail: ‘‘The enclosed letter was

processed through special mailing

procedures for forwarding to you. The

letter has neither been opened nor

inspected. If the writer raises a question

or problem over which this facility has

jurisdiction, you may wish to return the

material for further information or

clarification. If the writer encloses

correspondence for forwarding to
65186 Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 / Rules and Regulations

another addressee, please return the

enclosure to the above address.’’

[FR Doc. 97–32325 Filed 12–9–97; 8:45 am]

BILLING CODE 4410–05–P

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP–1054–F]

RIN 1120–AA52

Correspondence: Pretrial Inmates

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

SUMMARY: In this document, the Bureau

of Prisons is amending its regulations on

correspondence to require that general

mail from pretrial inmates may not be

sealed and may be read and inspected

by staff. This amendment is intended to

provide for the continued efficient and

secure operation of the institution and

to protect the public.

EFFECTIVE DATE: January 9, 1998.

ADDRESSES: Office of General Counsel,

Bureau of Prisons, HOLC Room 754, 320

First Street, NW., Washington, DC

20534.

FOR FURTHER INFORMATION CONTACT: Roy

Nanovic, Office of General Counsel,

Bureau of Prisons, phone (202) 514–

6655.

SUPPLEMENTARY INFORMATION: The

Bureau of Prisons is amending its

regulations on correspondence (28 CFR

part 540, subpart B). A proposed rule on

this subject was published in the

Federal Register December 9, 1996 (61

FR 64954).

Provisions on general correspondence

in § 540.14(b) and (c) previously

specified that outgoing general mail

from pretrial inmates may be sealed by

the inmate and are not subject to

inspection by staff. On December 9,

1996, the Bureau proposed to require

that general mail from pretrial inmates

be sent out unsealed and subject to

inspection. The proposed requirement

matched the requirement for outgoing

general mail from sentenced inmates in

medium, high, and administrative

facilities. Ordinarily, pretrial inmates

are housed in administrative facilities.

Because pretrial inmates are not

classified as to levels of security (as

sentenced inmates are), the proposed

requirement would apply to pretrial

inmates even if they happen to be

housed in minimum or low facilities.

Special mail, whether from pretrial

inmates or sentenced inmates, was

unaffected by the proposed amendment.

No public comment was received on

the proposed rule, and the Bureau is

therefore adopting the proposed rule as

final without change.

Members of the public may submit

further comments concerning this rule

by writing to the previously cited

address. These comments will be

considered but will receive no response

in the Federal Register.

The Bureau of Prisons has determined

that this rule is not a significant

regulatory action for the purpose of E.O.

12866, and accordingly this rule was not

reviewed by the Office of Management

and Budget. After review of the law and

regulations, the Director, Bureau of

Prisons has certified that this rule, for

the purpose of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), does not have

a significant economic impact on a

substantial number of small entities,

within the meaning of the Act. Because

this rule pertains to the correctional

management of offenders committed to

the custody of the Attorney General or

the Director of the Bureau of Prisons, its

economic impact is limited to the

Bureau’s appropriated funds.

List of Subjects in 28 CFR Part 540

Prisoners.

Kathleen M. Hawk,

Director, Bureau of Prisons.

Accordingly, pursuant to the

rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and

delegated to the Director, Bureau of

Prisons in 28 CFR 0.96(p), part 540 in

subchapter C of 28 CFR chapter V is

amended as set forth below.

SUBCHAPTER C—INSTITUTIONAL

MANAGEMENT

PART 540—CONTACT WITH PERSONS

IN THE COMMUNITY

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; 28 CFR 0.95–0.99.

2. In § 540.14, paragraphs (b) and (c)

are revised to read as follows:

§ 540.14 General correspondence.

* * * * *

(b) Except for ‘‘special mail,’’ outgoing

mail from a pretrial inmate may not be

sealed by the inmate and may be read

and inspected by staff.

(c)(1) Outgoing mail from a sentenced

inmate in a minimum or low security

level institution may be sealed by the

inmate and, except as provided for in

paragraphs (c)(1)(i) through (iv) of this

section, is sent out unopened and

uninspected. Staff may open a

sentenced inmate’s outgoing general

correspondence:

(i) If there is reason to believe it

would interfere with the orderly

running of the institution, that it would

be threatening to the recipient, or that

it would facilitate criminal activity;

(ii) If the inmate is on a restricted

correspondence list;

(iii) If the correspondence is between

inmates (see § 540.17); or

(iv) If the envelope has an incomplete

return address.

(2) Except for ‘‘special mail,’’ outgoing

mail from a sentenced inmate in a

medium or high security level

institution, or an administrative

institution may not be sealed by the

inmate and may be read and inspected

by staff.

* * * * *

[FR Doc. 97–32324 Filed 12–9–97; 8:45 am]

BILLING CODE 4410–05–P