3168 Federal Register / Vol. 80, No. 14 / Thursday, January 22, 2015 / Rules and Regulations 

209; fax: (972) 248–3321; Internet: http://mu2aircraft.com. 

(4) You may view this service information 

at the FAA, Small Airplane Directorate, 901 

Locust, Kansas City, Missouri 64106. For 

information on the availability of this 

material at the FAA, call (816) 329–4148. 

(5) You may view this service information 

that is incorporated by reference at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

202–741–6030, or go to: http:// 

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued in Kansas City, Missouri, on 

December 30, 2014. 

Robert Busto, 

Acting Manager, Small Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. 2015–00007 Filed 1–21–15; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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, 

§ 540.201, which describes the 

designation criteria, must be read in 

tandem with § 540.202, particularly 

subparagraph (b), which states that after 

the Bureau becomes aware of one or 

more of the criteria described in 

§ 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 terroristrelated 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.’’ 


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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 ElGabrowny, 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 terroristrelated 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 § 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 § 540.201. 

This valid legitimate penological 

purpose negates a claim of a Bureauwide 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 


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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; § 540.43; § 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 onehour visits (expanded from the 

proposed rule limitation of one onehour 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 § 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 

(§ 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 § 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 


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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 § 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 

§ 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.’’ § 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 


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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.’’ § 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’’ (§ 540.204(a)), and that ‘‘regular 

visiting may be limited to immediate 

family members’’ (§ 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: 


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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 noncontact 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 § 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 nocontact 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 


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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. Attorneyclient visits, however, are not audiomonitored 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, nocontact 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 nocontact 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 nocontact 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 


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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. § 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. § 540.100(a)–(b); 

§ 540.101(d); id. § 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 ‘‘dayto-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 nonroutine 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 


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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 § 540.201. Rather, if a 

factor listed in § 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 

§ 540.202(b). The use of the criteria 

listed in § 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 § 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 

§ 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 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 80, No. 14 / Thursday, January 22, 2015 / Rules and Regulations 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 § 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. 

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 

■ 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. 

■ 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 

§ 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. 

§ 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 


tkelley on DSK3SPTVN1PROD with RULES
3178 Federal Register / Vol. 80, No. 14 / Thursday, January 22, 2015 / Rules and Regulations 

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. 

§ 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 § 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. 

§ 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. 

§ 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. 

§ 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 onehour visits each calendar month. The 

number of visitors permitted during any 

visit is within the Warden’s discretion. 

Such visits must occur through nocontact 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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