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Incoming Publications: Nudity and Sexually Explicit Material or Information

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Information about this document as published in the Federal Register.

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AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

SUMMARY:

In this document, we finalize our interim final rule which implemented a statutory provision prohibiting the Bureau of Prisons (Bureau) from using appropriated funds to “distribute or make available any commercially published information or material” that features nudity or is sexually explicit. We now publish this rule as a final rule and further clarify that “commercially published information or material” includes photographs or other pictorial depictions.

DATES:

This rule is effective on December 18, 2002.

ADDRESSES:

Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 20534.

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FOR FURTHER INFORMATION CONTACT:

Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 307-2105.

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SUPPLEMENTARY INFORMATION:

History of This Rule

The Fiscal Year 1997 Omnibus Budget Act (Pub. L. 104-208) first required that we use no funds available to the Bureau “to distribute or make available any commercially published information or material to a prisoner when it is made known to [us] that such information or material is sexually explicit or features nudity.”

On November 6, 1996, we published procedures implementing this provision in the Act as an interim final rule (61 FR 57568). The rule, effective December 1, 1996, became 28 CFR 540.70—540.72.

Within the two months after publishing this rule, we received six comments from individuals challenging the constitutionality of the statutory provisions underlying these rules on First Amendment grounds. The commenters generally argued that denying inmates access to information or material that is sexually explicit or features nudity violated their constitutional right to freedom of speech and communication.

Before we could respond to these comments, a group of inmates and publishers promptly challenged the constitutionality of the policy implemented by these rules in the case of Amatel v. Reno, 975 F. Supp. 365 (D.D.C. 1997). On August 12, 1997, the court in Amatel issued a nationwide preliminary injunction prohibiting us from using these procedures. We then suspended application of these rules.

On September 15, 1998, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court's preliminary injunction. Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) (rehearing en banc denied Dec. 23, 1998). They further appealed to the U.S. Supreme Court, which denied certiorari on June 24, 1999, Amatel v. Reno, 119 S. Ct. 2392 (1999).

Amatel upheld the apparent constitutionality of this statutory provision. By lifting the injunction, the U.S. Court of Appeals in Amatel allowed us to reimplement the policy mandated by statute through these rules.

What We Are Doing Now

In this rule, we finalize 28 CFR 540.70 through 540.72, as originally published in 1996 (61 FR 57568). We also amend § 540.72(b)(1) to clarify that “commercially published information or material” includes photographs or other pictorial depictions in response to a recent trend towards receipt of such prohibited materials. These photographs often arrive as commercially published information or material and are, therefore, prohibited by this rule. Although our previous definition of commercially published information or material did not explicitly include photographs or pictorial depictions, that prohibition is certainly implicit.

The Fiscal Year 1997 Omnibus Budget Act (Pub. L. 104-208) (1997 Budget Act) Start Printed Page 77426prohibited us from using authorized funds to “distribute or make available any commercially published information or material” (emphasis added) if it is “sexually explicit or features nudity”. This effectively requires us to prohibit dissemination in our institutions of this type of material. We do not have the discretion to allow inmates to receive the information or material that the statute prohibits. We therefore interpret this provision to prohibit mailroom intake processing of this type of material.

The prohibition in the 1997 Budget Act was later repeated in section 615 of the Fiscal Year 2000 Omnibus Budget Act (Pub. L. 106-113) and section 614 of the D.C. Appropriations Act for Fiscal Year 2001 (Pub. L. 106-553). Currently, the prohibition is found in section 614 of the Department of Commerce, Justice, and State, The Judiciary and Related Agencies Appropriations Act 2002 (P.L. 107-77)(2002 Budget Act). We therefore clarify in our regulation that “commercially published information or material” includes photographs or pictorial depictions.

Although photographs and pictorial depictions that are “sexually explicit” or feature nudity are implicitly banned by the aforementioned statutory prohibitions, this clarification is necessary because inmates and members of the public misread our previous rule, which did not explicitly mention photographs and pictorial depictions. A recent trend involves inmates receiving sexually explicit or nude photographs from apparently commercial photography studios or from individual members of the public attempting to set up a form of paid correspondence through which inmates would buy photographs that were sexually explicit or featured nudity.

Inmates and members of the general public have the misapprehension that this type of “paid correspondence” (soliciting payment for photographs that are sexually explicit or feature nudity) is not prohibited by either (1) the general restriction in 28 CFR 540.12(a) on correspondence that threatens the security, discipline and good order an institution; or (2) our rule in 28 CFR 540.72(b)(1) defining “commercially published information or material” prohibited under section 614 of the 2002 Budget Act.

The general restriction in 28 CFR 540.12(a), which allows Wardens to “establish and exercise controls to protect individuals, and the security, discipline, and good order of the institution” encompasses the Bureau's discretion to reject photographs featuring nudity and explicit sexuality from non-commercial sources, such as an inmate's wife or girlfriend. Such personal photographs typically cause disciplinary problems among inmates and compromise institution security and good order. However, the “paid correspondence” incidents described above could be viewed as commercial correspondence which, arguably, could be thought beyond the reach of the Warden's controls on personal correspondence.

Likewise, it was argued that the restrictions on commercial correspondence did not apply to this form of “paid correspondence” because it was not explicitly encompassed in the previous rule. 28 CFR 540.72(b)(1) defined “commercially published information or material” under the statutory prohibition as: “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.”

This definition represented the Bureau's efforts to encompass all “material” featuring nudity or explicit sexuality contemplated by the statute. Although we believed our definition of commercially published information or material was sufficiently inclusive, inmates and members of the public have misinterpreted this definition as not applicable to photographs or pictorial depictions that are sexually explicit or featuring nudity. This rule change is therefore necessary to explicitly clarify that the statutory prohibition in section 614 of the 2002 Budget Act of all “commercially published information or material” that is “sexually explicit or features nudity” includes photographs and pictorial depictions. We intend this change to eliminate current misunderstanding of the statute by inmates and the general public.

Inmates are allowed to possess material that is “sexually explicit or features nudity” if that material was in their possession before this interim final rule became effective on December 1, 1996. Other regulations prohibit inmates from receiving sexually explicit materials during visits or through personal mail. Similarly, inmates may not receive, through the mail or otherwise, any materials which threaten the safety, security, good order of the institution, or violates criminal laws. Such materials are prohibited by the these rules, and the rules on inmate correspondence, part 540, subpart B.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Director of the Bureau of Prisons has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget.

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. 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 of 1996

This rule is not a major rule as defined by section 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-Start Printed Page 77427based companies in domestic and export markets.

Plain Language Instructions

We want to make Bureau documents easier to read and understand. If you can suggest how to improve the clarity of these regulations, call or write to Sarah Qureshi at the address or telephone number listed above.

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List of Subjects in 28 CFR Part 540

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Kathleen Hawk Sawyer,

Director, Bureau of Prisons.

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Under the rulemaking authority vested in the Attorney General in

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SUBCHAPTER C—INSTITUTIONAL MANAGEMENT

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PART 540—CONTACT WITH PERSONS IN THE COMMUNITY

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1. The authority citation for part 540 is revised to read as follows:

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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.

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2. Amend § 540.72 by adding “photograph or other pictorial depiction,” before “or similar document” in paragraph (b)(1).

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[FR Doc. 02-31660 Filed 12-17-02; 8:45 am]

BILLING CODE 4410-05-P