Incoming Publications: Nudity and Sexually Explicit Material or Information

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]

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