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[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Rules and Regulations]
[Pages 21163-21164]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9373]

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1149-I]
RIN 1120-AB49

Inmate Communication With News Media: Removal of Byline 
Regulations

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule.

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SUMMARY: In this interim rule, the Bureau of Prisons (Bureau) revises 
its regulations regarding inmate contact with the community to delete 
two current Bureau regulations that prohibit inmates from publishing 
under a byline, due to a recent court ruling invalidating Bureau 
regulation language containing this prohibition.

DATES: Comments are due by June 22, 2010.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534.

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

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
contains so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
    In this interim rule, the Bureau revises its regulations regarding 
inmate contact with the community to delete two current Bureau 
regulations that prohibit inmates from publishing under a byline, due 
to a recent court ruling invalidating Bureau regulation language 
containing this prohibition.
    Currently, 28 CFR 540.20(b) states as follows: ``The inmate may not 
receive compensation or anything of value for correspondence with the 
news media. The inmate may not act as reporter or publish under a 
byline.''
    Also, current 28 CFR 540.62(d) states as follows: ``An inmate 
currently confined in an institution may not be employed or act as a 
reporter or publish under a byline.''
    On August 9, 2007, in Jordan v. Pugh, 504 F.Supp.2d 1109 (D. Colo. 
2007), the court issued a decision invalidating the byline language of 
Sec.  540.20(b). The court found that not all inmate publishing under a 
byline jeopardizes security, and overruled the byline portion of the 
provision as facially overbroad for prohibiting all such activity. The 
Bureau is not appealing this decision. We

[[Page 21164]]

therefore alter the regulations accordingly.
    Further, due to the court's findings regarding Sec.  540.20(b), the 
identical provision in Sec.  540.62(d) will also be deleted.

Administrative Procedure Act

    The Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) allows 
exceptions to notice-and-comment rulemaking ``when the agency for good 
cause finds * * * that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' 
Further, Sec.  553(d) provides an exception to the usual requirement of 
a delayed effective date when an agency finds ``good cause'' that the 
rule be made immediately effective.
    This rulemaking is exempt from normal notice-and-comment procedures 
because advance notice and public comment in this instance is 
impracticable. It is impracticable to invite public comment on the 
result of a court order which invalidated the regulatory provision 
which we now seek to remove. Further, prompt implementation of the 
court order is necessary to protect the Bureau from liability arising 
from potential application of an invalidated regulation, and to afford 
inmates the benefit of the court's decision. Otherwise, this rulemaking 
makes no change to any rights or responsibilities of the agency or any 
regulated entities. For the same reasons, the Bureau finds that ``good 
cause'' exists to make this rule effective upon publication. 
Nevertheless, the Bureau invites public comment on this interim rule.

Executive Order 12866

    This regulation falls within a category of actions that the Office 
of Management and Budget (OMB) has determined to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was reviewed by OMB.
    The Bureau of Prisons has assessed the costs and benefits of this 
regulation as required by Executive Order 12866 Section 1(b)(6) and has 
made a reasoned determination that the benefits of this regulation 
justify its costs. There will be no new costs associated with this 
regulation.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, under Executive Order 13132, 
we determine that this regulation does not have sufficient Federalism 
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by 
approving it certifies that it will not have a significant economic 
impact upon a substantial number of small entities for the following 
reasons: This regulation pertains to the correctional management of 
offenders and immigration detainees committed to the custody of the 
Attorney General or the Director of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by State, local 
and Tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This regulation is not a major rule as defined by Sec.  804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This 
regulation will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 540

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
Under rulemaking authority vested in the Attorney General in 5 U.S.C 
301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons amends 28 CFR part 540 as follows.

PART 540--CONTACT WITH PERSONS IN THE COMMUNITY

0
1. Revise the authority citation for 28 CFR part 540 to read as 
follows:

    Authority: 5 U.S.C. 301; 551, 552a; 18 U.S.C. 1791, 3621, 3622, 
3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 
509, 510.

Subpart B--Correspondence

0
2. Revise Sec.  540.20(b) as follows:

Sec.  540.20  Inmate correspondence with representatives of the news 
media.

* * * * *
    (b) The inmate may not receive compensation or anything of value 
for correspondence with the news media. The inmate may not act as 
reporter.
* * * * *

Subpart E--Contact With News Media

0
3. Revise Sec.  540.62(d) as follows:

Sec.  540.62  Institutional visits.

* * * * *
    (d) An inmate currently confined in an institution may not be 
employed or act as a reporter.
* * * * *
[FR Doc. 2010-9373 Filed 4-22-10; 8:45 am]
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