Daily Rules, Proposed Rules, and Notices of the Federal Government
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The Bureau amends its regulations on religious beliefs and practices to add a new regulation (Section 548.21) regarding chapel library materials. The regulations are necessary to notify inmates that certain materials that could incite, promote, or otherwise suggest the commission of violence or criminal activity may be excluded from chapel libraries. This change is also being made in connection with section 214 of the Second Chance Act of 2007, approved April 9, 2008, (Pub. L. 110-199; 122 Stat. 657) (“Second Chance Act”).
In addition to the Second Chance Act, concerns related to chapel libraries were also raised in an April 2004 report from the Office of the Inspector General (OIG) examining Bureau religious services. The OIG report stated that exclusions of material from Bureau chapel libraries are necessary to prevent criminal activity and radicalization of inmates. The OIG report indicated that terrorist groups are likely to attempt to radicalize and recruit inmates in the United States “because they may be predisposed to violence, feel disenfranchised from society, desire power and influence, seek revenge against those who incarcerated them, be hostile towards authority and the United States, or cling to a radical or extremist religious `family.' ” (OIG Report, April 2004, page 7.)
As a matter of correctional security and management, it is essential that the Bureau be cognizant of the risks of unrest within prisons. Violence among particular inmates or groups of inmates, who must live together, jeopardizes the safety of inmates and staff, as well as potentially involving the destruction of government property. Under 18 U.S.C. 4042(a) the Bureau is specifically charged with providing for the safekeeping and protection of inmates. In carrying out this duty the Bureau must ensure that materials provided to inmates will not promote violence or criminal activity, thereby endangering the safety, security, and good order of Bureau facilities, and the protection of the public. In addition, under 28 CFR 548.15, no one may “disparage the religious beliefs of an inmate * * *” The Bureau is very aware of the sensitivity related to religious issues and the real possibility for strife to be fostered in this context.
Section 548.21(a) of the proposed rule states that the Bureau maintains chapel library materials for inmates to pursue religious beliefs and practices while in Bureau custody consistent with ensuring that such materials do not jeopardize the safety, security, or orderly operation of Bureau facilities, or protection of the public. The Bureau maintains custody of more than 200,000 inmates in 114 facilities nationwide. All Bureau facilities maintain chapels for inmate religious activities and chapel libraries that provide inmates with access to religious books, audiotapes, and videos relating to many different religions. The Bureau recognizes the importance of providing inmates with materials necessary to support their pursuit of religious interests. However, the Bureau must evaluate chapel library materials to ensure that the safety of inmates, staff, and the public are not adversely affected.
Therefore, based on the criteria listed in the Second Chance Act, subparagraph (b) of the proposed rule lists possible reasons for excluding chapel library material. Generally, materials may be excluded from the chapel library if the material could incite, promote, or otherwise suggest the commission of violence or criminal activity. This language derives from section 214 of the Second Chance Act, which states that “the Bureau of Prisons may restrict access to * * * (1) Any materials in a chapel library that seek to incite, promote, or otherwise suggest the commission of violence or criminal activity; and (2) any other materials prohibited by any other law or regulation.” Section 214 also states that “[n]othing in this section shall be construed to impact policies of the Bureau of Prisons related to access by specific prisoners to materials for security, safety, sanitation, or disciplinary reasons.”
Subparagraph (c) explains that inciting, promoting, or otherwise suggesting the commission of violence or criminal activity includes: (1) Advocating or fostering violence, vengeance, or hatred toward particular religious, racial, or ethnic groups; or (2) urging the overthrow or destruction of the United States.
Therefore, to implement the provisions of the Second Chance Act, as well as the Bureau's statutory and regulatory duties, the Bureau proposes this addition to its regulations regarding religious beliefs and practices.
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 Section 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 rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR
1. The authority citation for 28 CFR part 548 continues to read as follows:
5 U.S.C. 301; 18 U.S.C. 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; 42 U.S.C. 1996; 28 CFR 0.95-0.99.
2. Add a new § 548.21 to read as follows:
(a) The Bureau maintains chapel library materials for inmates to pursue religious beliefs and practices while in Bureau custody consistent with ensuring that such materials do not jeopardize the safety, security, or orderly operation of Bureau facilities, or protection of the public.
(b) Material may be excluded from the chapel library if it is determined that such material could incite, promote, or otherwise suggest the commission of violence or criminal activity.
(c) For purposes of this subpart, inciting, promoting, or otherwise suggesting the commission of violence or criminal activity may include, but is not limited to:
(1) Advocating or fostering violence, vengeance, or hatred toward particular religious, racial, or ethnic groups; or
(2) Urging the overthrow or destruction of the United States.