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[Federal Register: March 23, 2010 (Volume 75, Number 55)]
[Proposed Rules]               
[Page 13705-13707]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr10-29]                         

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 513

[BOP Docket No. 1157-P]
RIN 1120-AB57

 
Inmate Access to Inmate Central File: PSRs and SORs

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Prisons (Bureau) proposes to amend regulations 
regarding inmate access to Inmate Central File materials to prohibit 
sentenced inmates incarcerated in Bureau facilities, including those in 
contract facilities or community confinement, from possessing their 
Pre-Sentence Investigation Reports (PSRs), Statements of Reasons 
(SORs), or other similar sentencing documents from criminal judgments. 
Such inmates under this prohibition will continue to be permitted to 
review their PSRs and SORs.

DATES: Comments due by May 24, 2010.

ADDRESSES: Comments should be submitted to the Rules Unit, Office of 
General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, 
DC 20534. You may view an electronic version of this rule at http://www.regulations.gov. You may also comment via the Internet by using the 
http://www.regulations.gov comment form for this regulation. When 
submitting comments electronically you must include the BOP Docket No. 
in the subject box.

[[Page 13706]]


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 are 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.

Proposed Rule

    The Bureau proposes to amend its regulation on inmate access to 
Inmate Central File documents (28 CFR 513.40). We published the current 
regulation in the Federal Register on December 9, 1996 (61 FR 64950). 
This proposed rule seeks to prohibit sentenced inmates incarcerated in 
Bureau facilities, including those in contract facilities or in 
community confinement, from possessing their Pre-Sentence Investigation 
Reports (PSRs), Statements of Reasons (SORs), or other similar 
sentencing documents from criminal judgments. Such inmates under this 
prohibition will be permitted to review their PSRs, SORs, or other 
similar documents. Further, pretrial inmates in Bureau facilities, 
including those in contract facilities or in community confinement, may 
possess and review these documents in preparation for sentencing.
    At present, inmates incarcerated in Bureau facilities, including 
those in contract facilities or in community confinement, may make a 
request at their facility for an opportunity to review and obtain 
copies of these documents. Under this rule, such inmates may review 
these documents and take notes, but are prohibited from possessing 
copies of these documents. This change addresses the problem of inmates 
pressuring other inmates for copies of their PSRs, SORs, or other 
similar documents, to learn if they are informants, gang members, have 
financial resources, etc. This change will help the Bureau better 
protect the safety and security of its institutions, inmates, staff, 
and the public.
    The SOR is contained on the last page(s) of an inmate's Federal 
Criminal Judgment (formally known as the Judgment in a Criminal Case). 
The SOR contains the sentencing court's final advisory U.S. Sentencing 
Guidelines (USSG) calculations, which reflect its decisions on various 
issues such as whether to impose a sentence which varies from the USSG 
and its reasons for doing so. PSRs, SORs, and other similar documents 
contain personal information regarding, for example, government 
assistance, gang affiliations, financial resources, involvement of 
family members and others in the community, etc.
    In 2002, the Bureau recognized an emerging problem: Inmates, or 
inmate groups, pressure other inmates for copies of their PSRs and SORs 
to learn if they are informants, gang members, have financial 
resources, or to learn of others involved in the offense, etc. Inmates 
who produced, or refused to produce, the documents were often 
threatened, assaulted, and/or sought protective custody, all of which 
jeopardized the Bureau's ability to effectively and safely manage its 
institutions. The defense bar, Federal sentencing courts, and the 
Bureau identified this issue. The Bureau worked closely with the 
Administrative Office of the U.S. Courts (AOUSC) in crafting this 
change.
    Inmates incarcerated in Bureau facilities, including those in 
contract facilities or in community confinement, may still review their 
PSRs, SORs, or other similar documents locally. Staff must provide 
inmates reasonable opportunities to locally review these documents as 
staff time and official duties permit. During local reviews, inmates 
are allowed to make handwritten notes. Only the inmates' retention of 
copies of these documents is prohibited, unless the inmate is a 
pretrial inmate with a need to review these documents prior to 
sentencing.
    In Dept. of Justice v. Julian, 486 U.S. 1 (1988), the U.S. Supreme 
Court decided the government was obligated to provide inmates access to 
their own pre-sentence investigation reports under the Freedom of 
Information Act (FOIA). By continuing to provide inmates reasonable 
access to locally review their PSRs and SORs, the Bureau's obligation 
under the FOIA is satisfied. The Julian decision did not mandate that 
inmates be permitted to obtain and possess copies of these documents 
contrary to legitimate penological interests, i.e., the safety and 
security of Bureau institutions, inmates, staff, and the public.
    Finally, this rule indicates that persons other than the inmate may 
not obtain copies of inmate PSRs, SORs, or other similar documents from 
the Bureau while the inmate is incarcerated, even if they provide 
written authorization from the inmate. This is necessary because the 
Bureau has found that third parties not affiliated with the inmate 
sometimes force inmate authorization and then use the inmate's PSR and/
or SOR to prove gang affiliation to other inmates or for other reasons 
that are contrary to legitimate penological interests, i.e., the safety 
and security of Bureau institutions, inmates, staff, and the public. 
Third parties may, however, continue to request copies of PSRs, SORs, 
or other similar documents directly from the sentencing court, defense 
counsel, or the U.S. Probation Office.

Executive Order 12866

    We drafted and reviewed this regulation reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'', section 
1(b), Principles of Regulation. It has been determined that this rule 
is a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), and accordingly this rule has been reviewed by the Office 
of Management and Budget.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States,

[[Page 13707]]

on the relationship between the national government and the States, or 
on distribution of power and responsibilities among the various levels 
of government. Under Executive Order 13132, this rule does not have 
sufficient federalism implications for which we would prepare 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. By 
approving it, the Director certifies that it will not have a 
significant economic impact upon a substantial number of small entities 
because: This rule is about the correctional management of offenders 
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 rule will not cause State, local and Tribal governments, or 
the private sector, to spend $100,000,000 or more in any one year, and 
it will not significantly or uniquely affect small governments. We do 
not need to take action under the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule 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 513

    Prisoners.

Harley G. Lappin,
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 propose to amend 28 CFR part 513, subpart D, 
as follows.

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 513--ACCESS TO RECORDS

    1. Revise the authority citation for 28 CFR part 513 to read as 
follows:

    Authority: 5 U.S.C. 301; 13 U.S.C.; 18 U.S.C. 3621, 3622, 3624, 
4001, 4042, 4942, 4081, 4082 (Repealed in part as to conduct 
occurring on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984, as to conduct occurring after that date), 5039; 28 U.S.C. 
509, 510; 31 U.S.C. 3711(f); 5 CFR part 297.
    2. Revise Sec.  513.40(a) as follows:


Sec.  513.40  Inmate access to Inmate Central File.

* * * * *
    (a) Inmate review of his/her Inmate Central File. (1) Request to 
review Inmate Central File. An inmate may at any time request to review 
all disclosable portions of his/her Inmate Central File by submitting a 
request to a staff member designated by the Warden. Staff are to 
acknowledge the request and schedule the inmate, as promptly as is 
practical, for a review of the file at a time which will not disrupt 
institution operations.
    (2) Pre-Sentence Investigation Reports, Statements of Reason, or 
other similar documents. Inmates incarcerated in Bureau facilities, 
including those in contract facilities or community confinement, are 
prohibited from possessing their Pre-Sentence Investigation Reports 
(PSRs), Statements of Reasons (SORs), or other similar sentencing 
documents from criminal judgments.
    (i) Sentenced inmates in Bureau facilities, including those in 
contract facilities or community confinement, may request an 
opportunity to review these documents and take notes, but will not be 
permitted to possess copies of these documents.
    (ii) Pretrial inmates in Bureau facilities, including those in 
contract facilities or community confinement, may possess and review 
these documents in preparation for sentencing.
    (iii) Persons other than the inmate may not obtain copies of inmate 
PSRs, SORs, or other similar documents from the Bureau while the inmate 
is incarcerated in a Bureau facility, including those in contract 
facilities or community confinement, even if they provide written 
authorization from the inmate. Such persons may request these documents 
directly from the sentencing court, defense counsel, or U.S. Probation 
Office.

[FR Doc. 2010-6288 Filed 3-22-10; 8:45 am]
BILLING CODE 4410-05-P
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