[Federal Register Volume 61, Number 216 (Wednesday, November 6, 1996)]
[Rules and Regulations]
[Pages 57568-57569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28565]
[[Page 57567]]
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Part III
Department of Justice
_______________________________________________________________________
Bureau of Prisons
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28 CFR Part 540
Incoming Publications: Nudity and Sexually Explicit Material or
Information; Interim Rule
Federal Register / Vol. 61, No. 216 / Wednesday, November 6, 1996 /
Rules and Regulations
[[Page 57568]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 540
[BOP-1064-I]
RIN 1120-AA59
Incoming Publications: Nudity and Sexually Explicit Material or
Information
AGENCY: Bureau of Prisons, Justice.
ACTION: Interim rule.
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SUMMARY: This rule modifies the Bureau of Prisons rule on Incoming
Publications in order to implement the provisions of the Fiscal Year
1997 Omnibus Budget Act (Public Law 104-208) prohibiting use of
appropriated funds for distributing or making available to an inmate
any commercially published information or material when such
information or material is sexually explicit or features nudity.
DATES: Effective December 1, 1996; comments must be submitted by
January 6, 1997.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, D.C. 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is adopting interim
regulations to its existing rule on incoming publications (28 CFR part
540, subpart F). A final rule on this subject was published June 29,
1979 (44 FR 38260), as amended December 7, 1982 (47 FR 55129) and
January 3, 1985 (50 FR 411).
The current modification implements a provision of the Fiscal Year
1997 Omnibus Budget Act (P.L. 104-208) that directly affects the
Bureau. The specific provision provides that none of the funds made
available in this Act to the Federal Bureau of Prisons may be used to
distribute or make available any commercially published information or
material to a prisoner when it is made known to the Federal Official
having authority to obligate or expend such funds that such information
or material is sexually explicit or features nudity.
Based on this statutory restriction, a new Sec. 540.72 is being
added, entitled, ``Statutory restrictions requiring return of
commercially published information or material which is sexually
explicit or features nudity''. This section implements the provisions
of Public Law 104-208 by providing for the return of the disallowed
information or material to the publisher or sender. The rule provides
for the publisher or sender to be notified that an independent review
of the decision may be obtained by writing to the Regional Director
within 20 days of receipt of the letter returning the material. The
inmate is to be provided with written notice of the action. The new
section contains definitions of ``commercially published information or
material'', ``nudity'', ``features'', and ``sexually explicit''.
Other provisions in subpart F have been amended in order to improve
organization and to update references to the Bureau's provisions on the
Administrative Remedy Program. Section 540.70, on purpose and scope,
has been revised to remove procedural details on delegation of
authority. Those procedural details have been included in
Sec. 540.71(a). The definition of publication contained in that section
has been updated to include better examples of material likely to be
submitted. An introductory phrase, ``Except when precluded by statute
(see Sec. 540.72),'' has been added to the section in recognition of
the new legislative requirement. Admendments also have been made in
Sec. 540.71 (d) and (e) to indicate the retitled Administrative Remedy
Program and to indicate the longer period of time now available to the
inmate for filing a remedy request (20 days rather than 15 days).
Because this statutory restriction on the Bureau of Prisons'
appropriated funds is applicable with the Fiscal Year beginning October
1, 1996, the Bureau finds good cause for making this amendment
effective without a full thirty day delay and without notice of
proposed rulemaking. The Bureau, however, has elected to publish this
regulation as an interim rule in order to invite public comment and to
delay effectiveness until December 1, 1996. Members of the public may
submit comments concerning this rule by writing to the previously cited
address. Comments received before the deadline will be considered
before the rule is finalized; comments received after the deadline will
be considered to the extent practicable.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866. After
review of the law and regulations, the Director, Bureau of Prisons has
certified that this rule, for the purpose of the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.), does not have a significant impact on a
substantial number of small entities beyond that required by the Fiscal
Year 1997 Omnibus Budget Act. The economic impact of this regulation is
either limited to the Bureau's appropriated funds or is required by the
Fiscal Year 1997 Omnibus Budget Act.
List of Subjects in 28 CFR Part 540
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), part 540 in subchapter C of 28
CFR, chapter V is amended as set forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 540--CONTACT WITH PERSONS IN THE COMMUNITY
1. The authority citation for 28 CFR part 540 is revised to read as
follows:
Authority: 5 U.S.C. 301, 551, 552a; 18 U.S.C. 1791, 3621, 3622,
3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987), 5006-5024 (Repealed October
12, 1984 as to offenses committed after that date), 5039; 28 U.S.C.
509, 510; Public Law 104-208, Section 614 (110 Stat. 3009); 28 CFR
0.95-0.99.
2. Section 540.70 is revised to read as follows:
Sec. 540.70 Purpose and scope.
Except when precluded by statute (see Sec. 540.72), the Bureau of
Prisons permits an inmate to subscribe to or to receive publications
without prior approval and has established procedures to determine if
an incoming publication is detrimental to the security, discipline, or
good order of the institution or if it might facilitate criminal
activity. The term publication, as used in this subpart, means a book,
booklet, pamphlet, or similar document, or a single issue of a
magazine, periodical, newsletter, newspaper, plus such other materials
addressed to a specific inmate such as advertising brochures, flyers,
and catalogs.
3. In Sec. 540.71, paragraph (a) is amended by adding two sentences
at the end, paragraph (d) is amended by revising the phrase
``Administrative Remedy Procedure'' to read ``Administrative Remedy
Program'', and paragraph (e) is amended by revising the phrase
``Administrative Remedy Procedure'' to read ``Administrative Remedy
Program'' and by revising the phrase ``15 days'' to read ``20 days''.
Sec. 540.71 Procedures.
(a) * * * The Warden may designate staff to review and where
appropriate to
[[Page 57569]]
approve all incoming publications in accordance with the provisions of
this subpart. Only the Warden may reject an incoming publication.
* * * * *
4. Section 540.72 is added to read as follows:
Sec. 540.72 Statutory restrictions requiring return of commercially
published information or material which is sexually explicit or
features nudity.
(a) When commercially published information or material may not be
distributed by staff or made available to inmates due to statutory
restrictions (for example, a prohibition on the use of appropriated
funds to distribute or make available to inmates information or
material which is sexually explicit or features nudity), the Warden or
designee shall return the information or material to the publisher or
sender. The Warden or designee shall advise the publisher or sender
that an independent review of the decision may be obtained by writing
to the Regional Director within 20 days of receipt of the notification
letter. Staff shall provide the inmate with written notice of the
action.
(b) Definitions: For the purpose of this section:
(1) Commercially published information or material means any book,
booklet, pamphlet, magazine, periodical, newsletter, or similar
document, including stationery and greeting cards, published by any
individual, organization, company, or corporation which is distributed
or made available through any means or media for a commercial purpose.
This definition includes any portion extracted, photocopied, or clipped
from such items.
(2) Nudity means a pictorial depiction where genitalia or female
breasts are exposed.
(3) Features means the publication contains depictions of nudity or
sexually explicit conduct on a routine or regular basis or promotes
itself based upon such depictions in the case of individual one-time
issues. Publications containing nudity illustrative of medical,
educational, or anthropological content may be excluded from this
definition.
(4) Sexually explicit means a pictorial depiction of actual or
simulated sexual acts including sexual intercourse, oral sex, or
masturbation.
[FR Doc. 96-28565 Filed 11-5-96; 8:45 am]
BILLING CODE 4410-05-P
