[Federal Register Volume 77, Number 64 (Tuesday, April 3, 2012)]
[Rules and Regulations]
[Pages 19932-19933]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7971]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1149-F]
RIN 1120-AB49


Inmate Communication With News Media: Removal of Byline 
Regulations

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes an 
interim rule published April 23, 2010, regarding inmate contact with 
the community which deleted two previous Bureau regulations that 
prohibited inmates from publishing under a byline, due to a recent 
court ruling invalidating Bureau regulation language containing this 
prohibition.

DATES: This rule is effective on May 3, 2012.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: In this document, the Bureau of Prisons 
(Bureau) finalizes an interim rule regarding inmate contact with the 
community which deleted two previous Bureau regulations that prohibited 
inmates from publishing under a byline, due to a recent court ruling 
invalidating Bureau regulation language containing this prohibition. 
The interim rule was published on April 23, 2010 (75 FR 21163), and a 
technical correction (correcting the effective date of the interim rule 
to May 7, 2010) was published on May 7, 2010 (75 FR 25110). We received 
one comment on the interim rule, which we address below.
    The commenter first objected to the Bureau's interim rule as having 
been promulgated incorrectly under the Administrative Procedure Act 
(APA) (5 U.S.C. 553, et seq.). The commenter stated that the Bureau did 
not articulate ``good cause'' under the APA to forego normal notice-
and-comment rulemaking procedures.
    In response, the Bureau explained its ``good cause'' in the interim 
rule. The Bureau stated that the APA (5 U.S.C. Sec.  553(b)(3)(B)) 
allows exceptions to notice-and-comment rulemaking ``when the agency 
for good cause finds * * * that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' The 
Bureau indicated it would be impracticable to invite public comment on 
the result of a court order invalidating a regulatory provision because 
prompt implementation of the court order was necessary to afford 
inmates the benefit of the court's decision and to protect the Bureau 
from liability arising from potential application of an invalidated 
regulation.
    The commenter states that it was not enough for the Bureau to 
recognize that the court in Jordan v. Pugh, 504 F.Supp.2d 1109 (D. 
Colo. 2007), issued a decision invalidating the byline language of 
Sec.  540.20(b). In the interim rule, the Bureau stated that the court 
found that not all inmate publishing under a byline jeopardizes 
security, and overruled the byline portion of the provision as facially 
overbroad for prohibiting all such activity. The commenter posits that 
the Bureau should have mentioned the ultimate holding in that case. We 
therefore do so below. The Jordan court held as follows:

    Court concludes that the Byline Regulation violates the First 
Amendment rights of Mr. Jordan, other inmates in federal 
institutions, and the press * * *
    It is therefore ordered that judgment shall enter in favor of 
the Plaintiff, Mark Jordan, and against the Defendants, Michael V. 
Pugh, J. York, R.E. Derr, B. Sellers, and Stanley Rowlett, in their 
official capacities:
    (1) Declaring that the language of 28 CFR 540.20(b), ``The 
inmate may not * * * publish under a byline'', violates the First 
Amendment to the United States Constitution; and
    (2) Enjoining the Federal Bureau of Prisons from punishing any 
inmate for violation of 28 CFR 540.20(b)'s provision that: ``The 
inmate may not * * * publish under a byline.''

Id. at 1126.

    In so holding, the court invalidated 28 CFR 540.20(b)'s ``byline'' 
language, a fact that the Bureau indicated in the preamble to the 
interim rule. The commenter states that ``rulemaking prompted by a 
significant court ruling that holds that a regulation `violates the 
First Amendment rights' of the press deserves the full notice-and-
comment process specified by law, so that the public may review the 
Court's ruling, evaluate the Bureau's response, and comment.'' The 
commenter cites to no authority for this statement, and does not take 
into consideration that the public was able to review the decision when 
it was published in 2007. The Bureau's response is simple--remove the 
invalidated regulations. The public was given the opportunity to 
comment on the Bureau's action during the comment period for the 
interim rule.
    The commenter also rejects the Bureau's statement that the interim 
rule was necessary to protect the Bureau from liability arising from 
potential application of an invalidated regulation because the interim 
rule was published in 2010 whereas the decision was published in 2007. 
The commenter states that the Bureau should have issued a notice to 
Bureau staff in 2007 to not enforce the invalidated regulations. The 
Bureau did, in fact, issue mandatory guidance to its staff on November 
27, 2007, which stated that the Bureau

is revising these regulations to remove the byline provision 
invalidated by the court. Until that occurs, however, an inmate's 
publishing under a byline, by itself, can no longer support 
disciplinary action * * * [W]hile the court expressly limited its 
holding only to the byline language of Sec.  540.20(b), neither 
should Bureau staff discipline inmates for publishing under a byline 
under the identical provision in Sec.  540.62(d).

    The commenter then argues that the provision in the rule stating 
that inmates may not act as reporters violates the First Amendment of 
the U.S. Constitution. We note that this provision was unchanged by the 
interim rule. However, the commenter indicates that ``[b]y repealing 
the `byline language' and leaving the prohibition on acting as a 
reporter, the Bureau has not correctly responded to the holding of the 
Jordan case.''
    We note that the holding in Jordan was limited to invalidation of 
the ``byline'' language, not the ``reporter'' language. In Jordan, the 
court referred to a memorandum issued by the Bureau's Office of General 
Counsel on October 20, 2006, in which the Bureau clarified to staff 
that ``acting as a reporter'' means doing so ``on a regular or repeated 
basis,'' as opposed to a one-time publication under a byline. This is 
an important distinction because regular, repeated, compensated 
activity as a reporter signifies that the inmate is conducting a 
business, which is prohibited by the Bureau's inmate discipline 
regulations. Prevention of conducting a business was recognized by the 
Jordan court as a ``legitimate penological objective.'' Id. at 1123.

[[Page 19933]]

    Also, the court noted that the plaintiff, a federal inmate, had 
``never acted, requested to act or has been requested to act as a 
reporter,'' and therefore chose to restrict its decision to the 
``byline'' language without addressing the ``reporter'' language. In 
footnote 25, the court stated that the reporter ``portion of the 
regulation is not before the Court.'' Further, when the Bureau 
attempted to justify the ``byline'' language by indicating that 
publishing under a byline amounts to unauthorized conducting of a 
business, the court stated as follows:

    [T]his argument would carry more weight if the Court were 
addressing the portion of the Byline Regulation prohibiting inmates 
from acting as reporters. The role of a reporter envisions a 
relationship between the news media and the inmate, for which the 
inmate is compensated. But the scope of this lawsuit does not 
include the reporter portion of the regulation, and the danger of an 
inmate conducting a business simply because the inmate publishes a 
writing under a byline in the news media is much more remote.

Id. at 1123.

    The court's recognition of the distinction between ``publishing 
under a byline'' and ``acting as a reporter'' is clear from the 
language of the Jordan opinion. Likewise, the court's recognition of 
this distinction is clear in its holding invalidating only the 
``byline'' portion of the regulation but not the ``reporter'' portion. 
We therefore decline to remove the provision in the regulation 
prohibiting acting as a reporter.
    For the aforementioned reasons, the interim rule published on April 
23, 2010 (75 FR 21163), is hereby finalized without change.

Executive Order 12866

    This regulation does not fall 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 not 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.

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. Therefore, under Executive Order 13132, 
we determine that this regulation does not have sufficient Federalism 
implications to warrant the preparation of 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 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.

Unfunded Mandates Reform Act of 1995

    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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This regulation is not a major rule as defined by Sec.  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.

List of Subjects in 28 CFR Part 540

    Prisoners.
    For the aforementioned reasons, the interim rule published on April 
23, 2010 (75 FR 21163), is hereby finalized without change.

Charles E. Samuels, Jr.,
Director, Bureau of Prisons.
[FR Doc. 2012-7971 Filed 4-2-12; 8:45 am]
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