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:

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.

Executive Order 12866

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.

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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 Statesbased companies to compete with foreignbased companies in domestic and export markets.
List of Subjects in 28 CFR Part 540

Prisoners.
Harley G. Lappin,

Director, Bureau of Prisons.

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.
SUBCHAPTER CINSTITUTIONAL MANAGEMENT

PART 540CONTACT 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. 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:
Subpart JLimited Communication of Terrorist Inmates
Sec.
540.200 Purpose and Scope.
540.201 Definitions.
540.202 Limited Written Correspondence.
540.203 Limited Telephone Communication.
540.204 Limited Visiting.
540.205 Procedures.
Subpart JLimited Communication of Terrorist Inmates
Sec. 540.200 Purpose and Scope.
(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 Sec. 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.
Sec. 540.201 Definitions.

As used in this subpart:
(a) Terroristrelated activity means any activity that
(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.
(b) Engaging in terroristrelated activity means, in an individual capacity or as a member of an organization:
(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 terroristrelated organization;
(5) To solicit any individual:
(i) To engage in conduct otherwise described in this subpart; or (ii) For membership in a terroristrelated 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 terroristrelated organization.
(c) Terroristrelated organization means an organization: (1) Designated under section 1189 of Title 8;
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(2) Otherwise designated, via publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in terroristrelated activities; or (3) That is a group of two or more individuals, whether organized or not, which engages in terroristrelated activities.
(d) Immediate family members means spouse, mother, father, siblings, and children.

Sec. 540.202 Limited Written Correspondence.

The ability of inmates covered by this subpart to engage in written correspondence may be limited as follows:
(a) General correspondence. All general correspondence, as defined by part 540, may be limited to immediate family members. Correspondence to and/or from U.S. courts, Federal judges, U.S. Attorney's Offices, members of U.S. Congress, the Bureau, and other Federal law enforcement entities will be considered general correspondence, for the purposes of this regulation, as described below.
(1) Correspondence with immediate family members. Volume and frequency of outgoing and incoming general correspondence with immediate family members only, may be limited to three pieces of paper (not larger than 8\1/2\ x 11 inches), doublesided writing permitted, once per calendar week to and from a single recipient.
(2) Correspondence with U.S. courts, Federal judges, U.S. Attorney's Offices, members of U.S. Congress, the Bureau, and other Federal law enforcement entities. There is no frequency or volume limitation on this type of correspondence, unless the quantity to be processed becomes unreasonable or the inmate abuses or violates these regulations. This correspondence is subject to staff inspection for contraband and for content.
(b) Special mail, as defined in part 540, is limited to privileged communication with the inmate's attorney and, if the inmate is a national of a foreign country, a verified consular officer of that country. There is no frequency or volume limitation on this type correspondence, unless necessary as a result of the inmate's abuse or violation of these regulations. All special mail is subject to staff inspection in the inmate's presence for contraband and to ensure its qualification as special mail.

Sec. 540.203 Limited Telephone Communication.

The ability of inmates covered by this subpart to engage in telephone communication may be limited as follows:
(a) Monitored telephone communication may be limited to immediate family members only. The frequency and duration of this communication may be limited to a single connected call per calendar month lasting no longer than 15 minutes. Communication must be in English or simultaneously translated by an approved interpreter.
(b) Unmonitored telephone communication is limited to privileged communication with the inmate's attorney and, if the inmate is a national of a foreign country, to telephone conversations with verified consular representatives of that country. Unmonitored privileged telephone communication with the inmate's attorney is permitted: (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.

Sec. 540.204 Limited Visiting.

The ability of inmates covered by this subpart to visit with persons from the community may be limited as follows:
(a) Regular visiting may be limited to immediate family members. (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 noncontact 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. (b) Attorney visiting is limited to attorneyclient privileged communication as provided in part 540. Attorney visiting is permitted for the inmate's verified attorney only, unless the inmate is in the process of obtaining an attorney. These visits may be visually, but not auditorily, monitored.
(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.
(c) Consular visiting is limited to the inmate's verified consular officer, for inmates who are nationals of a foreign country, as provided in 28 CFR part 540. Consular officer visits may be visually, but not auditorily, monitored.

Sec. 540.205 Procedures.

When warranted, limited communication under this subpart will be implemented according to the following procedures:
(a) Initiation. The process of limiting communications under this subpart may begin either when:
(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).
(b) Consideration of factors. In addition to the criteria provided in Sec. 540.200(b) and any request made by a Federal law enforcement agency under (a), the Warden must also make a determination that limiting the inmate's communication is necessary to ensure the safety and security of the institution; protection of the public; or national security. This determination will be made after considering factors including, but not limited to, the following:
(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 terroristrelated material;
(4) Confirmed membership or leadership role in a terroristrelated organization;
(5) Admission by inmate of terroristrelated conduct;
(6) Information provided by a law enforcement and/or intelligence entity,
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or determined by the Bureau in any other manner, including, but not limited to, threat assessments prepared by the Federal Bureau of Investigation, court documents, presentence reports, and similar official documents;
(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 terroristrelated activities.
(c) Decision authority. 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, or any of their respective designees.
(d) Written notice. Inmates designated for limited communication under this subpart will receive written notice from the Warden, or designee, which will:
(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.
(e) Annual review. Individual inmate limitations will be reviewed annually from the date of imposition under the same criteria required for the initial determination in paragraphs (b) and (c) of this section. A determination to renew, modify, or remove the limitations must be communicated to the inmate through written notice, as described in paragraph (d) of this section. Failure to provide such notice to the inmate of renewal or modification of the limitations at least annually from the date of imposition will result in expiration of those limitations.
(f) Further Limitations Possible. Inmates may incur additional limitations on their communications as the direct result of abusing or violating individualized communication limits imposed under this subpart. Further limitations for these purposes may only occur as part of a temporary disciplinary sanction pursuant to procedures in 28 CFR part 541 or according to the procedures in this section for initially imposing the limitations. Unmonitored communications with verified attorneys and consular officers may be further restricted only as provided in part 501 and 28 CFR part 543. Inmates may also be subject to disciplinary action or criminal prosecution.
[FR Doc. E64766 Filed 33106; 8:45 am]
BILLING CODE 441005P

FOR FURTHER INFORMATION CONTACT

Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 3072105.