                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                                                                                        June 8, 2004
                           UNITED STATES COURT OF APPEALS
                                                                                  Charles R. Fulbruge III
                                    FOR THE FIFTH CIRCUIT                                 Clerk
                                  _________________________

                                         No. 03-41365
                                    SUMMARY CALENDAR
                                  _________________________

BRANDON CREIGHTON SAMPLE,

                       Plaintiff - Appellant,

   v.

HARRELL WATTS, National Inmate Appeals Administrator;
FEDERAL BUREAU OF PRISONS,

                       Defendants - Appellees.

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                              Southern District of Texas
                                   (C-02-CV-428)
______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal, we review the district court's decision to grant the motion for summary

judgment filed by Defendants - Appellees, Harrell Watts and the Federal Bureau of Prisons.

        Plaintiff - Appellant, Brandon Sample, argues that the implementation by the Bureau of



        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

                                                 -1-
Prisons of Program Statement 1351.05 prohibiting inmates from possessing copies of their

Presentence Report was either a change to existing Bureau of Prisons rule 28 C.F.R. § 513.44 or

a change to existing policy. According to Sample, the Bureau of Prisons should have complied

with the Administrative Procedure Act’s notice and comment requirements when the bureau

promulgated Program Statement 1351.05. According to Sample, because the Bureau of Prisons

failed to comply with the Administrative Procedures Act, Program Statement 1351.05 is invalid,

and the Bureau of Prisons must provide him with a copy of his Presentence Report in accordance

with 28 C.F.R. § 513.44.

       We disagree. Contrary to Sample’s assertion, 28 C.F.R. § 513.44 does not state that

inmates must be provided with copies of their Presentence Reports, but instead addresses the fees

to be assessed for copies of disclosable documents requested by prisoners. 28 C.F.R. § 513.44.

Program Statement 1351.04 explains what documents are disclosable, and Program Statement

1351.05 further explains that Presentence Reports are disclosable, but may not be possessed by

inmates in the prison area. The Bureau of Prisons implemented this prohibition in response to an

emerging problem where inmates pressure other inmates for a copy of their Presentence Report to

learn if they are informants, gang members, or have financial resources. Thus, Program Statement

1351.05 did not contradict or alter an existing rule of longstanding policy or practice, and the

Adminstrative Procedures Act’s notice and comment requirements do not apply. See Shell

Offshore, Inc. v. Babbitt, 238 F.3d 622, 627-30 (5th Cir. 2001); Phillips Petroleum Co. v.

Johnson, 22 F.3d 616, 621 (5th Cir. 1994).

       For the foregoing reasons, we affirm the district court’s decision. AFFIRMED.




                                                 -2-
