EXHIBIT E
NOTICE OF PROPOSED RULEMAKING

16520

Federal Register/Vol. 71, No. 63/Monday, April 3, 2006/Proposed Rules

Authority: Pub. 1. 107-296, 116 Stat. 2135,
6 U.S.c. 101 et seq.; 5 U.S.C. 301. Subpart A
also issued under 5 U.S.c. 552. Subpart B
also issued under 5 U.S.c. 552a.

of the accounting would also permit the
individual who is the subject of a record
to impede the investigation, tamper
with witnesses or evidence, and avoid
2. At the end of Appendix C to Part
detection or apprehension, which
5, which was proposed to be acWed at
would undermine the entire
70 FR 14428, March 22, 2005, add the
investigative process.
.
following new paragraph "4";
(b) From subsection (d) (Access to
Appendix C to Part 5-DHS Systems of Records) because access to the records
contained in this system ofrecords
Records Exempt From the Privacy Act
could inform the subject of an
*
*
*
*
investigation pertaining to an
4. The General Counsel Electronic
immigration matter, which in some
Management System (GEMS) consists of cases may be classified, and
records and information created or
prematurely reveal investigative interest
collected by attorneys for the Bureau of
on the part of DHS or another agency.
Immigration and Customs Enforcement, Access to the records could permit the
which will be used in the preparation
individual who is the subject of a record
and presentation of cases before a court
to impede the investigation, tamper
or other adjudicative body. ICE
with witnesses or evidence, and avoid
attorneys work closely with their
detection or apprehension. Amendment
investigators throughout the process of
of the records could interfere with
adjudicating immigration cases. GEMS
ongoing investigations and law
allows ICE attorneys to store all the
enforcement activities and would
materials pertaining to immigration
impose an impossible administrative
adjudications, including documents
burden by requiring investigations to be
related to investigations, case notes and continuously reinvestigated. In
other hearing related information, and
addition, permitting access and
briefs and memoranda of law related to
amendment to such information could
cases. Having this information in one
disclose security-sensitive information
system should not only facilitate the
that could be detrimental to homeland
work of the ICE attorneys involved in
security.
the particular case, but also will provide
(c) From subsection (e)(1) (Relevancy
a legal resource for other attorneys who
and Necessity of Information) because
are adjudicating similar cases. The
in the course of investigations into
system will also provide management
potential violations of federal
capabilities for tracking time and effort
immigration law, the accuracy of
expended in the preparation and
information obtained or introduced
presentation of cases.
occasionally may be unclear or the
Pursuant to exemptions 5 U.S.C.
information may not be strictly relevant
552a(j)(2) of the Privacy Act, portions of or necessary to a specific investigation.
this system are exempt from 5 V.S.c.
In the interests of effective law
552a(c)(3) and (4); (d); (e)(1), (e)(2),
enforcement and for the protection of
(e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and
national security, it is appropriate to
(e)(8); (f)(2) through (5); and (g).
retain all information that may aid in
Pursuant to 5 V.S.c. 552a (k)(1) and
establishing patterns of unlawful
(k)(2), this system is exempt from the
activity.
following provisions of the Privacy Act,
(d) From subsection (e)(2) (Collection
subject to the limitations set forth in
of Information from Individuals)
those subsections; 5 V.S.C. 552a (c)(3),
because requiring that information be
(d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
collected from the subject of an
Exemptions from these particular
investigation would alert the subject of
subsections are justified, on a case-bythe nature or existence of an
case basis to be determined at the time
investigation, which could cause
a request is made, for the following
interference with the investigation, a
reasons;
related inquiry or other law enforcement
(a) From subsection (c)(3) (Accounting activities, some of which may be
for Disclosures) because release of the
classified.
accounting of disclosures could alert the
(e) From subsection (e)(3) (Notice to
subject of an investigation of an actual
Subjects) because providing such
or potential criminal, civil, or regulatory detailed information would impede law
violation, to the existence of the
enforcement in that it could
investigation, which in some cases may
compromise the existence of a
be classified, and reveal investigative
confidential investigation or reveal the
interest on the part of DHS or ICE.
identity of witnesses or confidential
Disclosure of the accounting would
informants.
(f) From subsections (e)(4)(G) and (H)
therefore present a serious impediment
to law enforcement efforts and/or efforts (Agency Requirements), (f) (Agency
to preserve national security. Disclosure Rules), and (g) (Civil Remedies) because

portions of this system are exempt from
the individual access provisions of
subsection (d).
(g) From subsection (e)(5) (Collection
of Information) because in the collection
of information for law enforcement
purposes it is impossible to determine
in advance what information is
accurate, relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on
Individuals) because compliance would
interfere with ICE's ability to obtain,
serve, and issue subpoenas, warrants
and other law enforcement mechanisms
that may be filed under seal, and could
result in disclosure of investigative
techniques, procedures, and evidence.
(i) From subsection (g) to the extent
that the system is exempt from other
specific subsections of the Privacy Act.
Dated: March 23, 2006.
Maureen Cooney,
Acting ChiefPrivacy Officer.
[FR Doc. E6-4693 Filed 3-31-06; 8:45 amI
BILLING CODE 441o-1O-P

DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 540
[BOP Docket No. 1135-P]
RIN 1120-AB35

Limited Communication for Terrorist
Inmates

Bureau of Prisons, Justice.
Proposed rule.

AGENCY:
ACTION:

In this document, the Bureau
of Prisons (Bureau) proposes a new
regulation that allows for limiting the
communication opportunities of
inmates charged with, convicted of, or
detained in relation to, an offense under
Title 18 U.S.c. chapters 113B or 115; or
are charged with having engaged in,
have engaged in, are detained in relation
to, or who have an identifiable link to
terrorist-related activity. The Warden
may only impose communication
restrictions under this regulation, when
the Federal Bureau of Investigation
(FBI), or other Federal law enforcement
agency, makes a request to the Bureau
to have an individual inmate's
communications limited, unless Bureau
of Prisons information indicates a
similar need to impose the
communication restriction. Once this
request by the FBI or other Federal law
enforcement agency is made, the
Warden of the facility where the inmate
is housed will consider whether such a
limitation is necessary to ensure the
SUMMARY:

Federal Register/Vol. 71, No. 63/Monday, April 3, 2006/Proposed Rules
safety and security of the institution;
protection of the public; or national
security. 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.
DATES: Comments are due by June 2,
2006.

16521

when warranted, on a case-by-case
community other than immediate family
members, U.S. courts, Federal judges,
basis, to minimize communication
while still accommodating the rights
U.S. Attorney's Offices, members of U.S.
Congress, the Bureau, other Federal law
guaranteed by the First Amendment to
enforcement entities, verified consular
petition for redress of grievances. By
officers of the inmate's country if the
limiting the communications of these
inmate is a national of a foreign country,
inmates, the Bureau seeks to balance
and the inmate's attorney.
First Amendment rights with its
Communication related to terroristobligations to ensure the safety and
security of the institution; protection of related activity can occur in codes
which are difficult to detect and
the public; and/or national security.
ADDRESSES: Our e-mail address is
extremely time-consuming to interpret.
The proposed regulation would give
BOPRULES@BOP.GOV. Comments
the Bureau authority for imposing limits Inmates involved in such
should be submitted to the Rules Unit,
and restrictions on the communications communication, and other persons
of inmates in the Bureau's custody
involved or linked to terrorist-related
Office of General Counsel, Bureau of
based on criteria or evidence, either
activities, take on an exalted status with
Prisons, 320 First Street, NW.,
from outside sources (such as other
other like-minded individuals. Their
Washington, DC 20534. You may view
federal agencies) or from internal
communications acquire a special level
an electronic version of this regulation
of inspirational significance for those
at http://www.regulations.gov. You may sources (such as intelligence gained
who are already predisposed to these
also comment via the Internet to BOP at through observation of inmates in
views, causing a substantial risk that
Bureau custody). Communications
BOPRULES@BOP.GOV or by using the
would be limited if such evidence
such recipients of their communications
http://www.regulations.gov comment
indicates, inter alia, a high degree of
will be incited to unlawful terroristform for this regulation. When
related activity.
submitting comments electronically you potential risk to national security.
The danger of coded messages from
must include the BOP Docket No. in the However, this regulation will be applied
prisoners has been recognized by the
differently from regulations in 28 CFR
subject box.
courts. See Turner v. Safley, 482 U.S.
part 501, which authorize the Attorney
FOR FURTHER INFORMATION CONTACT:
78,93 (1987) ("In any event, prisoners
General to impose special
Sarah Qureshi, Office of General
could easily write in jargon or codes to
Counsel, Bureau of Prisons, phone (202) administrative measures (SAMs).
Under 28 CFR part 501, SAMs are
prevent detection of their real
307-2105.
messages."); United States v. Salameh,
imposed after approval by the Attorney
SUPPLEMENTARY INFORMATION: In this
152 F.3d 88,108 (2nd Cir. 1998)
General and are generally based on
document, the Bureau issues a new
("Because Ajaj was in jail and his
information from the FBI and the U.S.
regulation that allows for limiting the
Attorney's Office (USAOJ, but are
telephone calls were monitored, Ajaj
communication opportunities of
and Yousef spoke in code when
typically not based solely on
inmates charged with, convicted of, or
discussing the bomb plot."); United
information from internal Bureau of
detained in relation to an offense under Prisons sources. Unlike 28 CFR part
States v. Johnson, 223 F.3d 665, 673
Title 18 U.S.c. Chapters 113B or 115; or 501, the proposed regulations allow the
(7th Cir. 2000) ("And we know that
are charged with having engaged in,
Bureau to impose communication limits anyone who has access to a telephone
have engaged in, are detained in relation upon request from FBI or other Federal
or is permitted to receive visitors may
to, or who have an identifiable link to
law enforcement agency, or if Bureau of be able to transmit a lethal message in
terrorist-related activity.
code."); United States v. Hammoud, 381
Prisons information indicates a similar
Under this regulation, when the
F.3d 316, 334 (4th Cir. 2004) ("A
need to impose communication
Federal Bureau of Investigation (FBI), or restrictions, evidence which does not
conversation that seems innocuous on
other Federal law enforcement agency,
rise to the same degree of potential risk
one day may later turn out to be of great
makes a request to the Bureau to have
to national security or risk of acts of
significance, particularly if the
an individual inmate's communications violence or terrorism which would
individuals are talking in code.");
limited, the Warden of the facility
warrant the Attorney General's
United States v. Moncivais, 401 F.3d
where the inmate is housed will
intervention by issuance of a SAM.
751,757 (6th Cir. 2005) (noting police
consider whether such a limitation is
Furthermore, while SAMs have the
testimony that seemingly nonsensical
necessary to ensure the safety and
potential to restrict communication
conversations could be in code and
security of the institution; protection of
entirely, this regulation delineates a
interpreted as indicative of drug dealing
the public; or national security. The
floor of limited communication, beneath activity). Also, an Al Qaeda training
Warden may also initiate the process if
which the Bureau cannot restrict unless manual contains the following advice
Bureau of Prisons information indicates precipitated by the inmate's violation of regarding communications from prison:
a similar need to impose
imposed limitations, and then only as a
"Take advantage of visits to
communication restrictions. If the
disciplinary sanction following due
communicate with brothers outside
Warden deems it necessary, the inmate's process procedures in 28 CFR part 541.
prison and exchange information that
communications will be limited after
Past behaviors of terrorist inmates
may be helpful to them in their work
approval by the Regional Director and
provide sufficient grounds to suggest a
outside prison. The importance of
the Assistant Director, Correctional
substantial risk that they may inspire or mastering the art of hiding messages is
incite terrorist-related activity,
Programs Division.
self evident here."
There have been cases of imprisoned
especially if communicated to groups
While this regulation may allow for
willing to become martyrs, or to provide terrorists communicating with their
limiting the communication of inmates
followers regarding future terrorist
to whom it is applied, it will not
equipment or logistics to carry out
terrorist-related activities. The potential activity. For example, after EI Sayyid
extinguish their monitored
Nosair assassinated Rabbi Kahane, he
communication abilities absent abuse or ramifications of this activity outweigh
was placed in Rikers Island, where "he
the inmate's interest in unlimited
violations committed by the inmate.
With this regulation, the Bureau seeks,
began to receive a steady stream of
communication with persons in the

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Federal Register/Vol. 71, No. 63/Monday, April 3, 2006/Proposed Rules

visitors, most regularly his cousin ElGabrowny, and also Abouhalima,
Salameh, and Ayyad. During these
visits, as well as subsequent visits once
Nosair was at Attica, Nosair suggested
numerous terrorist operations, including
the murders of the judge who sentenced
him and of Dov Hikind, a New York
City Assemblyman, and chided his
visitors for doing nothing to further the
jihad against the oppressors. Nosair also
tape recorded messages while in
.
custody * * *" United States v.
Rahman, 189 F.3d 88, 105-06 (2d Cir.
1999). Imprisoned, Sheikh Abdel
Rahman had urged his followers to wage
jihad to obtain his release. Violent
attacks and murders followed. United
States v. Sattar, 314 F.Supp.2d 279,
288-89 (S.D.N.Y. 2004).
To minimize the risk of terroristrelated communication being sent to or
from inmates in Bureau custody, this
. regulation allows the Bureau, upon
request from FBI or other Federal law
enforcement agency or if Bureau of
Prisons information indicates a similar
need to impose communication
restrictions, to limit the communication
of inmates, individually identified
under this regulation, to immediate
family members, 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 ofthe inmate's
country if the inmate is a national of a
foreign country, and the inmate's
attorney. The Bureau allows
communication with these individuals
to help inmates maintain family ties,
and to protect inmates' access to courts
and other government officials in order
to raise issues related to their
incarceration or their conditions of
confinement, while minimizing the
threat to the safety and security of the
institution and protecting the public
and national security.
The proposed regulation provides that
the initial decision regarding whether
an inmate's communication will be
limited will be made when FBI or
another Federal law enforcement agency
makes a request to the Bureau to have
an inmate's communication limited, or
if Bureau of Prisons information
indicates a similar need to impose
communication restrictions.
Upon receiving such a request from
the FBI or other Federal law
enforcement agency, the Warden ofthe
facility where the inmate is housed will
consider whether such limitations are
necessary to ensure the safety and
security of the institution; protection of
the public; or national security.
If the Warden deems such limitations
necessary, that inmate's

communications will be so limited after
approval by the Regional Director and
the Assistant Director, Correctional
Programs Division.
The Warden is in the unique position
of having access to a wide variety of
information regarding an inmate's past
and present activity and propensities,
and can analyze the totality of an
inmate's circumstances to determine
whether to limit communications. The
Warden will also be aware of national
security concerns, and can assess the
propensity of inmates to act in a way
that presents a national security risk,
such as attempting to recruit others,
based on available information.
Currently, there are several Bureau
regulations which underscore the
Warden's authority and unique ability
to make determinations and take action
to ensure protection of the public. For
instance, in the Bureau's Federal
regulations in volume 28 ofthe Code of
Federal Regulations:
• Sections 524.70-524.76, regarding the
Central Inmate Monitoring (CIM) System,
allows the Warden to evaluate and determine
whether certain inmates present special
ne,eds for management and therefore require
a higher level of review for transfers,
temporary releases, or community activities,
not to preclude such inmates from such
activities where otherwise eligible, but to
provide necessary protection to all
concerned. Section 540.14(d) states that the
Warden may reject correspondence sent by or
to an inmate if it is determined detrimental
to the security, good order, or discipline of
the institution, to the protection of the
public, or if it might facilitate criminal
activity.
• Section 540.15 allows the Warden to
place an inmate on restricted general
correspondence for several reasons,
including if the inmate is a security risk,
threatens a government official, or otherwise
attempts to commit illegal activities.
• Section 540.100(a) states that inmate
telephone use is subject to those limitations
which the Warden determines are necessary
to ensure the security or good order,
including discipline, of the institution or to
protect the public. More specifically,
§ 540.101(a)(3) allows the Associate Warden
to deny placement of a telephone number on
an inmate's telephone list if she/he
determines that there is a threat to the public.
§ 540.102 allows for monitoring of inmate
telephone calls, also to protect the public.
• Section 545.23(d) provides that. when
making inmate work assignments, Wardens
must consider the institution's security and
operational needs, and [the assignment]
should be consistent with the safekeeping of
the inmate and protection of the public.
• Section 570.35(a) requires the Warden to
make a determination regarding whether
granting an inmate a furlough if the presence
of that inmate in the community could attract
undue public attention or create unusual
concern.

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:
• Written correspondence may be limited
to three pieces of paper, double-sided, once
per week to and from a single recipient;
• Telephone communication may be
limited to a single completed call per
calendar month for up to 15 minutes; and
• Visiting may be limited to one hour each
calendar month.
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.

Federal Register / Vol. 71, No. 63/ Monday, April 3, 2006/ Proposed Rules
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 anyone 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 § 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 foreignbased companies in domestic and
export markets.

16523

List of Subjects in 28 CFR Part 540
Prisoners.

other regulations in this chapter, except
28 CFR part 501.

Harley G. Lappin,
Director, Bureau a/Prisons.

§ 540.201

Definitions.

As used in this subpart:
(a) Terrorist-related activity meansUnder the rulemaking authority
any
activity thatvested in the Attorney General in 5
(1) Involves violent acts or acts
U.S.c. 552(a) and delegated to the
dangerous to human life that are a
Director, Bureau of Prisons, we propose
violation of the criminal laws of the
to amend 28 CFR part 540 as follows.
United States or of any State, or that
would be a criminal violation if
SUBCHAPTER C-INSTITUTIONAL
committed within the jurisdiction of the
MANAGEMENT
United States or of any State; and
(2) Appears to be intendedPART 54o-CONTACT WITH PERSONS
(i) To intimidate or coerce a civilian
IN THE COMMUNITY
population;
1. The authority citation for 28 CFR
(ii) To influence the policy of a
part 540 is revised to read as follows:
government by intimidation or coercion;
Authority: 5 U.S.c. 301, 551, 552a; 18
or
U.S.C. Chapters 113b and 115,1791,3621,
(iii) To affect the conduct of a
3622,3624,4001,4042,4081,4082 (Repealed government by mass destruction,
in part as to offenses committed on or after
assassination, or kidnaping.
November 1,1987), 5006-5024 (Repealed
(b) Engaging in terrorist-related
October 12, 1984 as to offenses committed
means, inanindividual
activity
after that date), 5039; 28 U.S.c. 509, 510,
capacity or as a member of an
530C(b)(6).
organization:
2. Add a new subpart J, to read as
(1) To commit, or to incite to commit
follows:
activity described in paragraph (a) of
this regulation;
SUbpart J-Limited Communication of
Terrorist Inmates
(2) To prepare or plan activity
described in paragraph (a) ofthis
Sec.
regulation;
540.200 Purpose and Scope.
(3) To gather information on potential
540.201 Definitions.
540.202 Limited Written Correspondence.
targets for activity described in
540.203 Limited Telephone
paragraph (a) of this regulation;
Communication.
(4) To contribute, donate or solicit
540.204 Limited Visiting.
funds or other things of value for:
540.205 Procedures.
(i) Activity described in paragraph (a)
SUbpart J-Limited Communication of of this regulation; or
(ii) A terrorist-related organization;
Terrorist Inmates
(5) To solicit any individual:
(i) To engage in conduct otherwise
§ 540.200 Purpose and Scope.
described in this subpart; or
(a) This subpart authorizes and
(ii) For membership in a terroristdefines the Federal Bureau of Prisons'
related organization; or
(Bureau) authority to limit the
(6) To commit an act that the actor
communication of inmates (as defined
knows, or reasonably should know,
in 28 CFR 500.1(c)) who have an
affords material support, including a
identifiable link to terrorist-related
safe house, transportation,
activity as provided in paragraph (b) of
communications, funds, transfer of
this section.
funds or other material financial benefit,
(b) This subpart may be applied to
false documentation or identification,
inmates in Bureau custody who are not
weapons (including chemical,
under special administrative measures
biological, or radiological weapons),
as described in 28 CFR part 501, who
explosives, or training:
meet the criteria in § 540.205(b), and
(i) For the commission of activity
who:
(1) Are charged with, convicted of, or described in paragraph (a) of this
detained in relation to, an offense under regulation;
(ii) To any individual who the actor
Title 18 U.S.c. Chapters 113B or 115, or
(2) Are charged with having engaged
knows, or reasonably should know, has
in, have engaged in, are detained in
committed or plans to commit activity
described in paragraph (a) ofthis
relation to, or have an identifiable link
to terrorist-related activity.
regulation; or
(c) The regulations in this subpart
(iii) To a terrorist-related organization.
supercede and control to the extent they
(c) Terrorist-related organization
conflict with, are inconsistent with, or
means an organization:
impose greater limitations than the
(1) Designated under section 1189 of
regulations in 28 CFR part 540, or any
Title 8;

16524

Federal Register/Vol. 71, No. 63/Monday, April 3, 2006/Proposed Rules

(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
terrorist-related activities; or
(3) That is a group of two or more
individuals, whether organized or not,
which engages in terrorist-related
activities.
(d) Immediate family members means
spouse, mother, father, siblings, and
children.
§ 540.202 Limited Written
Correspondence.

§ 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.

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
[qmily 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% x 11
inches), double-sided writing permitted,
once per calendar week to and from a
§ 540.204 Limited Visiting.
single recipient.
The ability of inmates covered by this
(2) Correspondence with u.s. courts,
subpart to visit with persons from the
Federal judges, u.s. Attorney's Offices,
community may be limited as follows:
members of u.s. Congress, the Bureau,
(a) Regular visiting may be limited to
and other Federal law enforcement
immediate family members.
entities. There is no frequency or
(1) The frequency and duration of
volume limitation on this type of
regular visiting may be limited to one
correspondence, unless the quantity to
hour each calendar month. The number
be processed becomes unreasonable or
of visitors permitted during any visit is
the inmate abuses or violates these
within the Warden's discretion. Such
regulations. This correspondence is
visits may occur through contact or nonsubject to staff inspection for
contact visiting facilities, at the
contraband and for content.
discretion of the Warden.
(2) Regular visits may be
(b) Special mail, as defined in part
simultaneously monitored and/or
540, is limited to privileged
recorded, both visually and auditorily,
communication with the inmate's
either in person or electronically.
attorney and, if the inmate is a national
(3) Communication during such visits
of a foreign country, a verified consular
must occur either in English, or be
officer of that country. There is no
simultaneously translated by an
frequency or volume limitation on this
approved interpreter.
type correspondence, unless necessary
(b) Attorney visiting is limited to
as a result ofthe inmate's abuse or
violation of these regulations. All
attorney-client privileged
special mail is subject to staff inspection communication as provided in part 540.
in the inmate's presence for contraband Attorney visiting is permitted for the
and to ensure its qualification as special inmate's verified attorney only, unless
the inmate is in the process of obtaining
mail.

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.
§ 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 offactors. In
addition to the criteria provided in
§ 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 ofthe
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 terrorist-related
organization;
(5) Admission by inmate of terroristrelated conduct;
(6) Information provided by a law
enforcement and/or intelligence entity,

Federal Register/Vol. 71, No. 63/Monday, April 3, 2006/Proposed Rules
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, pre-sentence 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 terrorist-related
activities.
(c) Decision authority. Ifthe 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
an'd 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. E6-4766 Filed 3-31-06; 8:45 am]
BILLING CODE 4410-05-P

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[CGD05-06-024j
RIN 1625-AA08

Special Local RegUlations for Marine
Events; Rappahannock River, Essex
County, Westmoreland County,
Layton, VA
AGENCY:
ACTION:

Coast Guard, DHS.
Notice of proposed rulemaking.

SUMMARY: The Coast Guard proposes a
temporary special local regulation for
"2006 Rappahannock River Boaters
Association Spring and Fall Radar
Shootout", power boat races to be held
on the waters ofthe Rappahannock
River near Layton, VA. These special
local regulations are necessary to
provide for the safety of life on
navigable waters during the event. This
action is intended to restrict vessel
traffic in the Rappahannock River
during the event.
DATES: Comments and related material
must reach the Coast Guard on or before
June 2, 2006.
ADDRESSES: You may mail comments
and related material to Commander
(oax), Fifth Coast Guard District, 431
Crawford Street, Portsmouth, Virginia
23704-5004, hand-deliver them to
Room 119 at the same address between
9 a.m. and 2 p.m., Monday through
Friday, except Federal holidays, or fax
them to (757) 398-6203. The Coast
Guard Auxiliary and Recreational
Boating Safety Branch, Fifth Coast
Guard District, maintains the public
docket for this rulemaking. Comments
and material received from the public,
as well as documents indicated in this
preamble as being available in the
docket, will become part of this docket
and will be available for inspection or
copying at the above address between 9

16525

a.m. and 2 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:

Dennis Sens, Marine Events
Coordinator, Fifth Coast Guard District,
at (757) 398-6204.
SUPPLEMENTARY INFORMATION:

Request for Comments
We encourage you to participate in
this rulemaking by submitting
comments and related material. If you
do so, please include your name and
address, identify the docket number for
this rulemaking (CGD05-06-024),
indicate the specific section of this
document to which each comment
applies, and give the reason for each
comment. Please submit all comments
and related material in an unbound
format, no larger than 8'12 by 11 inches,
suitable for copying. If you would like
to know they reached us, please enclose
a stamped, self-addressed postcard or
envelope. We will consider all
comments and material received during
the comment period. We may change
this proposed rule in view of them.
Public Meeting
We do not pian to hold a public
meeting. But you may submit a request
for a meeting by writing to the Coast
Guard at the address under ADDRESSES
explaining why one would be
beneficial. If we determine that one
would aid this rulemaking, we will hold
one at a time and place announced by
a later notice in the Federal Register.
Background and Purpose
On June 3 and 4, 2006; and October
7 and 8, 2006, the Rappahannock River
Boaters Association (RRBA) will
sponsor the "2006 RRBA Spring and
Fall Radar Shootout", on the waters of
the Rappahannock River near Layton,
Virginia. The event will consist of
approximately 35 powerboats
participating in high-speed competitive
races, traveling along a 3-mile strait line
race course. Participating boats will race
individually within the designated
course. A fleet of spectator vessels is
anticipated to gather nearby to view the
competition. Due to the need for vessel
control during the event, vessel traffic
will be temporarily restricted to provide
for the safety of participants, spectators
and transiting vessels.
Discussion of Proposed Rule
The Coast Guard proposes to establish
temporary special local regulations on
specified waters of the Rappahannock
River. The temporary special local
regulations will be enforced from 11:30
a.m. to 4:30 p.m. on June 3 and 4, 2006;
and October 7 and 8, 2006, and will