[Federal Register Volume 62, Number 237 (Wednesday, December 10, 1997)]
[Rules and Regulations]
[Pages 65184-65186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32325]
[[Page 65183]]
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Part IV
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Part 540
Correspondence: Restricted Special Mail Procedures; Final Rule
Correspondence: Pretrial Inmates; Final Rule
Federal Register / Vol. 62, No. 237 / Wednesday, December 10, 1997 /
Rules and Regulations
[[Page 65184]]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 540
[BOP-1048-F]
RIN 1120-AA48
Correspondence: Restricted Special Mail Procedures
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons is amending its
regulations on correspondence to provide for restricted special mail
procedures in instances where the Warden has reason to believe that the
special mail either has posed a threat or may pose a threat of physical
harm to the intended recipient. Under these procedures, such special
mail is subject to inspection, in the presence of the inmate, for
contraband and, at the request of the intended recipient, may be read
for the purpose of verifying that the special mail does not contain a
threat of physical harm. These amendments are intended to provide for
the continued efficient and secure operation of the institution and to
protect the public.
EFFECTIVE DATE: January 9, 1998.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its
regulations on correspondence (28 CFR part 540). A proposed rule on
this subject was published in the Federal Register February 14, 1996
(61 FR 5846).
Provisions in Sec. 540.18(c) previously stated that outgoing
special mail may be sealed by the inmate and is not subject to
inspection. The Bureau proposed a revised paragraph (c) to allow for
restricted special mail procedures for special mail addressed to
Federal court officials and members of Congress, and, if so requested,
to other intended recipients. These restricted special mail procedures
would apply in cases where the Warden (with the concurrence of the
Regional Counsel) documents in writing that the inmate's special mail
either has posed a threat or may pose a threat of physical harm to the
intended recipient. Any inmate placed on restricted special mail status
would be notified in writing by the Warden of the reason for being so
placed. The Warden is required to review an inmate's restricted special
mail status at least once every 180 days and to notify the inmate in
writing of the results of that review. The inmate may be removed from
restricted special mail status if the Warden (with the concurrence of
the Regional Counsel) determines that the inmate's special mail does
not threaten or pose a threat of physical harm to the intended
recipient. Such determinations are based on a comprehensive review of
pertinent factors, such as the inmate's institutional adjustment,
institution security level, and a current assessment of the conditions
which led to the inmate's placement into restricted special mail
status.
The Bureau received 8 comments on its proposed rule. Comment
generally focused on the purported need for the proposed restrictions,
possible infringement on the confidentiality of the attorney-client
privilege, possible delay in handling mail being sent to courts,
consideration of other means of dealing with the threat posed by such
special mail (including duplicative security measures in place for
recipients), ulterior motivation for the restrictions, and the general
futility of preventing abuse.
With respect to the need for the regulation, the Bureau disagrees
with suggestions that the rule misrepresents its intent. The rule is
not intended to restrict an inmate's legal access. Instead, it is
intended to help ensure institution security, discipline, and good
order, and to protect the public. The Bureau notes that instances have
occurred where special mail has caused, or has threatened physical
injury to the recipient. While these instances may not constitute a
widespread problem, neither do the procedures for restricted special
mail status pose any change to the special mail privilege for the vast
majority of inmates. Even so, for the purpose of assuring its
commitment to the integrity of special mail, the Bureau has modified
the proposed procedures to protect the special mail privilege to the
extent practicable and commensurate with the need for the security,
discipline and good order of the institution.
As previously proposed, the procedures apply only to inmates who
have been placed on restricted special mail status (that is to say,
those inmates whose special mail has been documented by the Warden,
with the concurrence of the Regional Counsel, either to have posed a
threat or which may pose a threat to the recipient). An inmate in this
status must present all materials and packaging intended to be sent as
special mail to staff for inspection. Staff shall inspect the special
mail material and packaging, in the presence of the inmate, for
contraband. This last provision deletes the proposed phrase ``or the
threat of physical harm'', as its intent is encompassed within the
remaining provision of inspecting for contraband. This change addresses
the concern of commenters that the proposed procedure infringes upon
the confidentiality of the attorney-client privilege or access to the
courts. As revised, the rule now states that staff reading of the
correspondence is restricted to when the recipient of the special mail
has so requested (the rule as proposed had assumed such permission with
respect to Federal court officials and members of Congress). As
revised, the procedure now more closely parallels the process for
inspecting incoming special mail (see Sec. 540.18).
Upon completion of the inspection, staff shall return the special
mail material to the inmate if the material does not contain contraband
or, when requested by the intended recipient, a reading determines that
there is no threat of physical harm. The inmate must then seal the
special mail material in the presence of staff. Special mail determined
to pose a threat shall be forwarded to the appropriate law enforcement
entity, and staff shall send a copy of the material, minus the
contraband, to the intended recipient along with notification that the
original of the material was forwarded to the appropriate law
enforcement entity.
In response to comments, the Bureau does not expect this procedure
to have much impact on the processing of special mail. The limited
applicability of the rule and the general Bureau policy that mail be
handled promptly should ensure that this mail is processed in a timely
fashion.
In response to commenters who suggested that sufficient and less
restrictive means were available to the intended recipients of special
mail to address threats posed by the special mail, the Bureau believes
its procedures are both prudent and unobstrusive. Visually observing
the assembling of special mail serves to deter the actual transmission
of dangerous materials and is compatible with the existing procedures
for handling incoming special mail (see Sec. 540.18). This protects
both the intended recipient and other persons involved in the delivery
or opening of the special mail. While the Bureau acknowledges, as one
commenter noted, that this procedure may not be successful in
preventing every possible instance of harm, the
[[Page 65185]]
procedure is intended to operate in conjunction with other procedures,
such as the ones alluded to by other commenters. Any resultant increase
in security which may be obtained through these new procedures clearly
is a benefit to the public.
Several commenters expressed concern that Bureau of Prisons staff
may abuse their discretion under this provision. As shown, the scope of
this rule is clearly limited in its application. Bureau of Prisons
staff are professionals and will be familiar with the procedures for
applying this rule. In the unlikely event of staff abuse, appropriate
disciplinary action will be initiated and appropriate sanctions
imposed.
Other commenters raised questions on the general provisions for
screening, e.g., how it will be requested, criteria used for assessing
threat. In response to such comments, the Bureau again notes that this
rule will have limited applicability, with such application governed by
Sec. 540.18(c)(2). Placement requires legal review, and notification to
the inmate of the reasons for placement. An inmate who disagrees with
this decision may appeal the decision through the Administrative Remedy
Program (28 CFR part 542).
A commenter questioned the statement in Sec. 540.18(d) advising the
recipient of special mail that if the writer raises a question over
which the facility has jurisdiction, the recipient may wish to return
the material for further information or clarification. The commenter
believes that this provision is vague, and that it either should be
deleted or specify the return is to the inmate. The Bureau disagrees
with this suggestion. This statement is not new and is intended to
offer the recipient the opportunity to contact the Bureau of Prisons if
that recipient desires further information or clarification over a
matter under the Bureau's jurisdiction. The choice on whether this is
done is clearly with the recipient of the special mail, and is not
violative of an inmate's legal rights.
As a final general comment, the Bureau notes that the provisions
for restricted special mail are designed to protect the public and are
not motivated by a desire to censor special mail. The procedures for
visually observing the assembling of special mail are not dissimilar to
procedures already in place for the delivery of special mail. Neither
inspection represents any attempt to censor mail. In those instances
where the intended recipient has authorized staff to read the special
mail (see Sec. 540.18(c)(2)(iii)), the special mail, or a copy of the
special mail in cases where the mail has been determined to pose a
threat of physical harm, is forwarded to the recipient.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. After review of the law and regulations, the Director, Bureau
of Prisons has certified that this rule, for the purpose of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), does not have a
significant economic impact on a substantial number of small entities,
within the meaning of the Act. Because this rule pertains to the
correctional management of offenders committed to the custody of the
Attorney General or the Director of the Bureau of Prisons, its economic
impact is limited to the Bureau's appropriated funds.
List of Subjects in 28 CFR Part 540
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), part 540 in subchapter C of 28
CFR, chapter V is amended as set forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 540--CONTACT WITH PERSONS IN THE COMMUNITY
1. The authority citation for 28 CFR part 540 is revised to read as
follows:
Authority: 5 U.S.C. 301, 551, 552a; 18 U.S.C. 1791, 3621, 3622,
3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987), 5006-5024 (Repealed October
12, 1984 as to offenses committed after that date), 5039; 28 U.S.C.
509, 510; 28 CFR 0.95-0.99.
2. In Sec. 540.18, paragraphs (c) and (d) are revised to read as
follows:
Sec. 540.18 Special mail.
* * * * *
(c)(1) Except as provided for in paragraph (c)(2) of this section,
outgoing special mail may be sealed by the inmate and is not subject to
inspection.
(2) Special mail shall be screened in accordance with the
provisions of paragraph (c)(2)(iii) of this section when the special
mail is being sent by an inmate who has been placed on restricted
special mail status.
(i) An inmate may be placed on restricted special mail status if
the Warden, with the concurrence of the Regional Counsel, documents in
writing that the special mail either has posed a threat or may pose a
threat of physical harm to the recipient (e.g., the inmate has
previously used special mail to threaten physical harm to a recipient).
(ii) The Warden shall notify the inmate in writing of the reason
the inmate is being placed on restricted special mail status.
(iii) An inmate on restricted special mail status must present all
materials and packaging intended to be sent as special mail to staff
for inspection. Staff shall inspect the special mail material and
packaging, in the presence of the inmate, for contraband. If the
intended recipient of the special mail has so requested, staff may read
the special mail for the purpose of verifying that the special mail
does not contain a threat of physical harm. Upon completion of the
inspection, staff shall return the special mail material to the inmate
if the material does not contain contraband, or contain a threat of
physical harm to the intended recipient. The inmate must then seal the
special mail material in the presence of staff and immediately give the
sealed special mail material to the observing staff for delivery.
Special mail determined to pose a threat to the intended recipient
shall be forwarded to the appropriate law enforcement entity. Staff
shall send a copy of the material, minus the contraband, to the
intended recipient along with notification that the original of the
material was forwarded to the appropriate law enforcement entity.
(iv) The Warden shall review an inmate's restricted special mail
status at least once every 180 days. The inmate is to be notified of
the results of this review. An inmate may be removed from restricted
special mail status if the Warden determines, with the concurrence of
the Regional Counsel, that the special mail does not threaten or pose a
threat of physical harm to the intended recipient.
(v) An inmate on restricted mail status may seek review of the
restriction through the Administrative Remedy Program.
(d) Except for special mail processed in accordance with paragraph
(c)(2) of this section, staff shall stamp the following statement
directly on the back side of the inmate's outgoing special mail: ``The
enclosed letter was processed through special mailing procedures for
forwarding to you. The letter has neither been opened nor inspected. If
the writer raises a question or problem over which this facility has
jurisdiction, you may wish to return the material for further
information or clarification. If the writer encloses correspondence for
forwarding to
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another addressee, please return the enclosure to the above address.''
[FR Doc. 97-32325 Filed 12-9-97; 8:45 am]
BILLING CODE 4410-05-P
