Daily Rules, Proposed Rules, and Notices of the Federal Government
In this document, the Bureau issues a new regulation that allows for limiting the communication opportunities of inmates charged with, convicted of, or detained in relation to an offense under Title 18 U.S.C. Chapters 113B or 115; or are charged with having engaged in, have engaged in, are detained in relation to, or who have an identifiable link to terrorist-related activity.
Under this regulation, when the Federal Bureau of Investigation (FBI), or other Federal law enforcement agency, makes a request to the Bureau to have an individual inmate's communications limited, the Warden of the facility where the inmate is housed will consider whether such a limitation is necessary to ensure the safety and security of the institution; protection of the public; or national security. The Warden may also initiate the process if Bureau of Prisons information indicates a similar need to impose communication restrictions. If the Warden deems it necessary, the inmate's communications will be limited after approval by the Regional Director and the Assistant Director, Correctional Programs Division.
While this regulation may allow for limiting the communication of inmates to whom it is applied, it will not extinguish their monitored communication abilities absent abuse or violations committed by the inmate. With this regulation, the Bureau seeks, when warranted, on a case-by-case basis, to minimize communication while still accommodating the rights guaranteed by the First Amendment to petition for redress of grievances. By limiting the communications of these inmates, the Bureau seeks to balance First Amendment rights with its obligations to ensure the safety and security of the institution; protection of the public; and/or national security.
The proposed regulation would give the Bureau authority for imposing limits and restrictions on the communications of inmates in the Bureau's custody based on criteria or evidence, either from outside sources (such as other federal agencies) or from internal sources (such as intelligence gained through observation of inmates in Bureau custody). Communications would be limited if such evidence indicates, inter alia, a high degree of potential risk to national security. However, 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 28 CFR part 501, SAMs are imposed after approval by the Attorney General and are generally based on information from the FBI and the U.S. Attorney's Office (USAO), but are typically not based solely on information from internal Bureau of Prisons sources. Unlike 28 CFR part 501, the proposed regulations allow the Bureau to impose communication limits upon request from FBI or other Federal law enforcement agency, or if Bureau of Prisons information indicates a similar need to impose communication restrictions, evidence which does not rise to the same degree of potential risk to national security or risk of acts of violence or terrorism which would warrant the Attorney General's intervention by issuance of a SAM.
Furthermore, while SAMs have the potential to restrict communication entirely, this regulation delineates 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.
Past behaviors of terrorist inmates provide sufficient grounds to suggest a substantial risk that they may inspire or incite terrorist-related activity, especially if communicated to groups willing to become martyrs, or to provide equipment or logistics to carry out terrorist-related activities. The potential ramifications of this activity outweigh the inmate's interest in unlimited communication with persons in the community other than 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, verified consular officers of the inmate's country if the inmate is a national of a foreign country, and the inmate's attorney.
Communication related to terrorist-related activity can occur in codes which 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.
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
To minimize the risk of terrorist-related communication being sent to or from inmates in Bureau custody, this regulation allows the Bureau, upon request from FBI or other Federal law enforcement agency or if Bureau of Prisons information indicates a similar need to impose communication restrictions, to limit the communication of inmates, individually identified under this regulation, 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, verified consular officers of the inmate's country if the inmate is a national of a foreign country, and the inmate's attorney. The Bureau allows communication with these individuals to help inmates maintain family ties, and to protect inmates' access to courts and other government officials in order to raise issues related to their incarceration or their conditions of confinement, while minimizing the threat to the safety and security of the institution and protecting the public and national security.
The proposed regulation provides that the initial decision regarding whether an inmate's communication will be limited will be made when FBI or another Federal law enforcement agency makes a request to the Bureau to have an inmate's communication limited, or if Bureau of Prisons information indicates a similar need to impose communication restrictions.
Upon receiving such a request from the FBI or other Federal law enforcement agency, the Warden of the facility where the inmate is housed will consider whether such limitations are necessary to ensure the safety and security of the institution; protection of the public; or national security.
If the Warden deems such limitations necessary, that inmate's communications will be so limited after approval by the Regional Director and the Assistant Director, Correctional Programs Division.
The Warden is in the unique position of having access to a wide variety of information regarding an inmate's past and present activity and propensities, and can analyze the totality of an inmate's circumstances to determine whether to limit communications. The Warden will also be aware of national security concerns, and can assess the propensity of inmates to act in a way that presents a national security risk, such as attempting to recruit others, based on available information.
Currently, there are several Bureau regulations which underscore the Warden's authority and unique ability to make determinations and take action to ensure protection of the public. For instance, in the Bureau's Federal regulations in volume 28 of the Code of Federal Regulations:
• Sections 524.70-524.76, regarding the Central Inmate Monitoring (CIM) System, allows the Warden to evaluate and determine whether certain inmates present special needs for management and therefore require a higher level of review for transfers, temporary releases, or community activities, not to preclude such inmates from such activities where otherwise eligible, but to provide necessary protection to all concerned. Section 540.14(d) states that the Warden may reject correspondence sent by or to an inmate if it is determined detrimental to the security, good order, or discipline of the institution, to the protection of the public, or if it might facilitate criminal activity.
• Section 540.15 allows the Warden to place an inmate on restricted general correspondence for several reasons, including if the inmate is a security risk, threatens a government official, or otherwise attempts to commit illegal activities.
• Section 540.100(a) states that 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. More specifically, § 540.101(a)(3) allows the Associate Warden to deny placement of a telephone number on an inmate's telephone list if she/he determines that there is a threat to the public. § 540.102 allows for monitoring of inmate telephone calls, also to protect the public.
• Section 545.23(d) provides that, when making inmate work assignments, Wardens must consider the institution's security and operational needs, and [the assignment] should be consistent with the safekeeping of the inmate and protection of the public.
• Section 570.35(a) requires the Warden to make a determination regarding whether granting an inmate a furlough if the presence of that inmate in the community could attract undue public attention or create unusual concern.
When applied to individual inmates under this regulation, the Bureau will actively monitor the frequency, volume, and content of their limited communications, except those to/from the inmate's attorney or a verified consular officer. To effectively and efficiently allow monitoring and review of these inmates' communications with immediate family members, those communications may be limited in frequency and volume as follows:
• Written correspondence may be limited to three pieces of paper, double-sided, once per week to and from a single recipient;
• Telephone communication may be limited to a single completed call per calendar month for up to 15 minutes; and
• Visiting may be limited to one hour each calendar month.
Absent abuse or violations by the inmate, this regulation does not limit the frequency or volume of written communication with U.S. courts, Federal judges, U.S. Attorney's Offices, members of U.S. Congress, the Bureau, other Federal law enforcement entities, verified consular officers of the inmate's country if the inmate is a national of a foreign country, and the inmate's attorney.
By limiting the frequency and volume of the communication to/from inmates identified under this regulation, we will reduce the amount of communication requiring monitoring and review. Reducing the volume of communications will help ensure the Bureau's ability to provide heightened scrutiny in reviewing communications, and thereby reducing the terrorism threat to the public and national security.
Inmates may incur additional limitations on their communications as the direct result of abusing or violating individualized communication limits imposed under this subsection, but additional limitations will occur only to the extent possible under this regulation and according to the procedures in this subsection. Unmonitored communications with verified attorneys and consular officers may be further limited in the form of monitoring only as provided in part 501 and 28 CFR part 543. Inmates may also be subject to disciplinary action or criminal prosecution for abusing or violating limits imposed under this subsection.
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.
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.
The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of offenders and immigration detainees committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.
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.
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 foreign-based companies in domestic and export markets.
Under the rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we propose to amend 28 CFR part 540 as follows.
1. The authority citation for 28 CFR part 540 is revised to read as follows:
5 U.S.C. 301, 551, 552a; 18 U.S.C. Chapters 113b and 115, 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, 530C(b)(6).
2. Add a new subpart J, to read as follows:
(a) This subpart authorizes and defines the Federal Bureau of Prisons' (Bureau) authority to limit the communication of inmates (as defined in 28 CFR 500.1(c)) who have an identifiable link to terrorist-related activity as provided in paragraph (b) of this section.
(b) This subpart may be applied to inmates in Bureau custody who are not under special administrative measures as described in 28 CFR part 501, who meet the criteria in § 540.205(b), and who:
(1) Are charged with, convicted of, or detained in relation to, an offense under Title 18 U.S.C. Chapters 113B or 115, or
(2) Are charged with having engaged in, have engaged in, are detained in relation to, or have an identifiable link to terrorist-related activity.
(c) The regulations in this subpart supercede and control to the extent they conflict with, are inconsistent with, or impose greater limitations than the regulations in 28 CFR part 540, or any other regulations in this chapter, except 28 CFR part 501.
As used in this subpart:
(1) Involves violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; and
(2) Appears to be intended—
(i) To intimidate or coerce a civilian population;
(ii) To influence the policy of a government by intimidation or coercion; or
(iii) To affect the conduct of a government by mass destruction, assassination, or kidnaping.
(1) To commit, or to incite to commit activity described in paragraph (a) of this regulation;
(2) To prepare or plan activity described in paragraph (a) of this regulation;
(3) To gather information on potential targets for activity described in paragraph (a) of this regulation;
(4) To contribute, donate or solicit funds or other things of value for:
(i) Activity described in paragraph (a) of this regulation; or
(ii) A terrorist-related organization;
(5) To solicit any individual:
(i) To engage in conduct otherwise described in this subpart; or
(ii) For membership in a terrorist-related organization; or
(6) To commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training:
(i) For the commission of activity described in paragraph (a) of this regulation;
(ii) To any individual who the actor knows, or reasonably should know, has committed or plans to commit activity described in paragraph (a) of this regulation; or
(iii) To a terrorist-related organization.
(1) Designated under section 1189 of Title 8;
(2) Otherwise designated, via publication in the
(3) That is a group of two or more individuals, whether organized or not, which engages in terrorist-related activities.
The ability of inmates covered by this subpart to engage in written correspondence may be limited as follows:
The ability of inmates covered by this subpart to engage in telephone communication may be limited as follows:
(1) For pretrial inmates (as defined in 28 CFR part 551), upon request of the inmate, as available resources permit; and
(2) For convicted inmates (as defined in 28 CFR part 551), 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.
The ability of inmates covered by this subpart to visit with persons from the community may be limited as follows:
(1) The frequency and duration of regular visiting may be limited to one hour each calendar month. The number of visitors permitted during any visit is within the Warden's discretion. Such visits may occur through contact or non-contact visiting facilities, at the discretion of the Warden.
(2) Regular visits may be simultaneously monitored and/or recorded, both visually and auditorily, either in person or electronically.
(3) Communication during such visits must occur either in English, or be simultaneously translated by an approved interpreter.
(1) For pretrial inmates (as defined in 28 CFR part 551), regulations and policies previously established under 28 CFR part 551 are applicable.
(2) For convicted inmates (as defined in 28 CFR part 551), regulations and policies previously established under 28 CFR part 543 are applicable.
When warranted, limited communication under this subpart will be implemented according to the following procedures:
(1) The Federal Bureau of Investigation, or other Federal law enforcement agency, makes an initial request to the Bureau of Prisons to have an inmate's communications limited under this subpart; or
(2) The Bureau deems it necessary to limit an inmate's communications under this subpart based on consideration of factors described in (b).
(1) Information that leads the Warden, while using sound correctional judgment, to reasonably believe that the inmate may attempt to, or has a propensity to, communicate messages harmful to the safety and security of the institution, the protection of the public, or national security;
(2) Actual charges, convictions and/or reasons for detention;
(3) Past or present conduct either before or during incarceration, including, but not limited to, terrorist alliances or possession of terrorist-related material;
(4) Confirmed membership or leadership role in a terrorist-related organization;
(5) Admission by inmate of terrorist-related conduct;
(6) Information provided by a law enforcement and/or intelligence entity,
(7) Information relating to past practice or attempted past practice of the inmate to communicate messages to others that, if not intercepted, could cause harm to the safety, security, or good order of the institution, the protection of the public, or national security; or
(8) The significance of the operational role the inmate had (such as planning, directing, executing, or assisting in actual terrorist acts) or material support role (such as training, arming, transporting, recruiting, communicating for, or providing safe harbor for terrorist operators) in terrorist or terrorist-related activities.
(1) Explain the specific limitations imposed and communication privileges allowed, which should be tailored to the particular circumstances of the inmate;
(2) Explain the reasons for the limitations, unless providing such information would jeopardize the safety or security of the institution; protection of the public; or national security; and
(3) Indicate the inmate's ability to challenge the decision through the Bureau's administrative remedy program.