[Federal Register Volume 72, Number 108 (Wednesday, June 6, 2007)]
[Rules and Regulations]
[Pages 31178-31181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10925]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 511

[BOP-1128]
RIN 1120-AB28


Searching and Detaining or Arresting Non-Inmates

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes 
regulations on searching and detaining or arresting non-inmates. This 
revision reorganizes current regulations and makes changes that subject 
non-inmates to pat searches, either as random searches or based upon 
reasonable suspicion, as a condition of entry to a Bureau facility.

DATES: This rule is effective July 6, 2007.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: In this document, the Bureau finalizes 
regulations on searching and detaining or arresting non-inmates. A 
proposed rule on this subject was published in the Federal Register on 
January 31, 2006 (71 FR 5026). We received four comments during the 
comment period. One was supportive of the rule. We respond to issues 
raised by the other three commenters below.
    Comment: Bureau staff should receive equivalent testing/scanning as 
the regulation requires for visitors. Two commenters expressed the 
opinion that Bureau staff should be subject to the same potential 
searches required for others seeking to enter Bureau facilities.
    In fact, Bureau employees are subject to search using the same 
search devices, methods, and technology employed to search other non-
inmates seeking to enter Bureau facilities. Current Bureau policy 
regarding searching non-inmates states that, in accord with Bureau 
standards of employee conduct, the Bureau retains the right to conduct 
searches of employees when such a search is believed necessary to 
ensure institution security and good order.
    Also, at the beginning of their employment, every Bureau employee 
receives, and signs for, a copy of the Bureau's Program Statement on 
Standards of Employee Conduct and Responsibility. This policy, along 
with signs posted at the entrances to each Bureau facility, notifies 
employees that they may be subject to any of the types of searches 
described above.
    Further, policy states that an employee's refusal to undergo a 
search (including test) procedure is a basis for disciplinary action, 
including removal. The range of disciplinary actions that might be 
taken against an employee determined to be using illegal drugs, or 
introducing drugs or other forms of contraband, includes dismissal and 
criminal prosecution.
    Comment: There are problems with the Bureau's use of ion 
spectrometers to perform searches. Two commenters raised issues 
surrounding the Bureau's use of ion spectrometers. Essentially, both 
commenters raised issues regarding the accuracy of such devices with 
regard to detecting illegal substances.
    Bureau's response: At the outset, we note that the use of an ion 
spectrometry device is not the sole method of searching non-inmates, 
and may not be applied to search all non-inmates entering Bureau 
facilities. As the regulation explains, many types of searches may be 
conducted, including electronic searches, visual searches, pat 
searches, and urine surveillance testing, all with the primary goal of 
ensuring the safety, security and good order of Bureau facilities by 
reducing the introduction of contraband.
    Ion spectrometry technology is designed to detect the presence of 
microscopic traces of illegal drugs on non-inmates and their clothing 
and belongings. Beginning in 1997, the Bureau conducted extensive 
testing of ion spectrometry technology to scan non-inmates for drugs as 
they enter Bureau facilities. Based on the results of this program, the 
Bureau concluded that using ion spectrometry devices contributed to 
reducing the amount of contraband on Bureau grounds.
    Ion spectrometry technology is grounded in the well-established 
scientific principles of mass spectrometry and gas chromatography. Ion 
spectrometry devices are a minimally invasive method for screening 
people, packages, and cargo for traces of illegal substances. Although 
capable of identifying trace illegal substances within approximately 
the 1-5 nanogram range (one nanogram equals one billionth of a gram), 
the Bureau's machines are calibrated to register positive readings only 
at levels greater than those which may be casually encountered, for 
example by handling contaminated currency, using a public telephone, or 
shaking hands. The manufacturer of the Bureau's ion spectrometry 
devices claims a less than 1% rate of false positive results.
    We have found that delivery of illicit substances while visiting is 
a common method for such substances to be introduced into institutions. 
Such methods include non-inmates swallowing small balloons full of 
illicit substances before entering the facility, then excreting and 
delivering the contents once inside. When done by this method, the ion 
spectrometry device may indicate handling of the illicit substance, 
while a further visual search of the individual would fail to disclose

[[Page 31179]]

its presence. Even if not directly transferred to the inmate while 
visiting, illicit substances can be secreted within the institution for 
later retrieval by inmates or others.
    With regard to non-inmates who test positive for the presence of 
illegal substances and are denied admission into a Bureau facility, 
under current policy on the ion spectrometry testing program, staff are 
required to give the non-inmate a written notice describing the reasons 
for denial of admission and the appeal process. All non-inmates may 
appeal denial of admission using the process set forth in the notice.
    Comment: Searches/random searches are intrusive and unfair. Two 
commenters expressed similar sentiments regarding the general concept 
of searching non-inmates wishing to enter Bureau facilities. One 
commenter stated that searches were unfair, and therefore 
discriminatory against non-inmates. The other commenter indicated that 
random searches were intrusive for non-inmates, and expressed 
particular concern regarding children.
    Bureau's response: First, we note that both commenters referred to 
random searches, and not searches based upon reasonable suspicion. 
Section 511.15(a)(1) requires that random searches be impartial and not 
discriminate among non-inmates on the basis of age, race, religion, 
national origin, or sex. Further, Bureau staff are held to the highest 
standards of professionalism and discretion when conducting searches. 
With regard to the commenter's concern regarding children, staff would 
exercise caution and compassion if it becomes necessary to search a 
child, to ensure that none of the child's rights are violated.
    However, instituting procedures requiring searches of non-inmates 
seeking to enter Bureau facilities is a necessity, originating from the 
need to prevent the introduction of contraband. The possibility of 
being searched (and the obvious notices so stating) acts as a minimally 
invasive deterrent to non-inmates seeking to introduce contraband, 
without unnecessarily or extremely burdening staff resources.
    Non-inmates are a significant source of contraband introduction 
into Bureau facilities. 18 U.S.C. 1791 prohibits providing an inmate a 
prohibited object in violation of a statute or rule issued under 
statute. Although other search methods, such as visual searches and 
electronic detection devices, enable us to search non-inmates before 
they enter Bureau facilities, a 2003 report by the Office of Inspector 
General found that non-inmates often found unique ways of introducing 
contraband that may have easily been detected or prevented by random 
pat searches of non-inmates entering Bureau facilities.
    We therefore must tighten security measures by instituting a system 
of random pat searches of non-inmates entering Bureau facilities. This 
will serve the dual purpose of preventing the introduction of 
contraband by its detection, and deterring non-inmates who may attempt 
to introduce contraband. The Bureau's overriding need to prevent 
introduction of contraband and/or confiscate contraband necessitates 
searches.
    In particular, random searches, (without reasonable suspicion) are 
permissible, especially if the non-inmate is given prior notice of the 
search, which therefore lowers the non-inmate's reasonable expectation 
of privacy when seeking entry to the prison facility, and consents to 
the search. See Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995); U.S. v. 
Johnson, 27 F.3d 564 (unpublished) (4th Cir. 1994); El v. Williams, 
1990 WL 65717 (unpublished) (E.D.Pa. 1990).
    In addition, we note that the more detailed searches, such as 
visual searches of the person, would only be performed based on the 
Warden's reasonable suspicion, as noted in Sec.  511.16(c)(1)(B). 
Random visual searches of the person are prohibited.
    Comment: It is not always possible to provide same-sex pat searches 
or visual searches, as indicated in the proposed rule. One commenter 
was concerned that ``although common law enforcement practice is to 
provide for same sex searches, in some cases this is not possible * * * 
[Requiring same sex searches] places the public at risk and undermines 
the professionalism of the Bureau of Prisons.'' The commenter also 
expressed concern regarding situations where a staff member of the same 
sex cannot be located quickly enough to do a pat search or visual 
search, or when exigent circumstances necessitate searches by staff who 
are not the same sex as the non-inmate.
    Bureau's response: We agree with the commenter, and therefore 
clarify that pat searches, visual searches, and urine surveillance 
testing will be conducted by staff members of the same sex as the non-
inmate being searched whenever possible. This concept is carried forth 
from the previous rule, Sec.  511.12(f), which states that ``[a] pat 
search, visual search, or urine surveillance test is to be conducted by 
a person of the same sex as the visitor.'' We further strengthen this 
provision by also requiring that pat searches, visual searches, and 
urine surveillance testing will only be conducted by staff members of 
the opposite sex in emergency situations with the Warden's 
authorization.

Executive Order 12866

    This rule 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.

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, in accordance with Executive 
Order 13132, it is determined 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, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation 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 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 States-based

[[Page 31180]]

companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 511

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
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 0.96, we amend 28 CFR part 511 as follows.

Subchapter A--General Management and Administration

PART 511--GENERAL MANAGEMENT POLICY

0
1. Revise the authority citation for 28 CFR part 511 to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 751, 752, 1791, 1792, 1793, 
3050, 3621, 3622, 3624, 4001, 4012, 4042, 4081, 4082 (Repealed 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.


0
2. Subpart B is revised as follows:

Subpart B--Searching and Detaining or Arresting Non-Inmates

Sec.
511.10 Purpose and scope.
511.11 Prohibited activities.
511.12 Prohibited objects.
511.13 Searches before entering, or while inside, a Bureau facility 
or Bureau grounds.
511.14 Notification of possible search.
511.15 When searches will be conducted.
511.16 How searches will be conducted.
511.17 When a non-inmate will be denied entry to or required to 
leave a Bureau facility or Bureau grounds.
511.18 When Bureau staff can arrest and detain a non-inmate.


Sec.  511.10  Purpose and scope.

    (a) This subpart facilitates our legal obligations to ensure the 
safety, security, and orderly operation of Bureau of Prisons (Bureau) 
facilities, and protect the public. These goals are furthered by 
carefully managing non-inmates, the objects they bring, and their 
activities, while inside a Bureau facility or upon the grounds of any 
Bureau facility (Bureau grounds).
    (b) Purpose. This subpart covers:
    (1) Searching non-inmates and their belongings (for example, bags, 
boxes, vehicles, containers in vehicles, jackets or coats, etc.) to 
prevent prohibited objects from entering a Bureau facility or Bureau 
grounds;
    (2) Authorizing, denying, and/or terminating a non-inmate's 
presence inside a Bureau facility or upon Bureau grounds; and
    (3) Authorizing Bureau staff to remove from inside a Bureau 
facility or upon Bureau grounds, and possibly arrest and detain, non-
inmates suspected of engaging in prohibited activity.
    (c) Scope/Application. This subpart applies to all persons who wish 
to enter, or are present inside a Bureau facility or upon Bureau 
grounds, other than inmates in Bureau custody. This subpart applies at 
all Bureau facilities and Bureau grounds, including administrative 
offices.


Sec.  511.11  Prohibited activities.

    (a) ``Prohibited activities'' include any activities that could 
jeopardize the Bureau's ability to ensure the safety, security, and 
orderly operation of Bureau facilities, and protect the public, whether 
or not such activities are criminal in nature.
    (b) Examples of ``prohibited activities'' include, but are not 
limited to: Introducing, or attempting to introduce, prohibited objects 
into a Bureau facility or upon Bureau grounds; assisting an escape; and 
any other conduct that violates criminal laws or is prohibited by 
federal regulations or Bureau policies.


Sec.  511.12  Prohibited objects.

    (a) ``Prohibited objects,'' as defined in 18 U.S.C. 1791(d)(1), 
include any objects that could jeopardize the Bureau's ability to 
ensure the safety, security, and orderly operation of Bureau 
facilities, and protect the public.
    (b) Examples of ``prohibited objects'' include, but are not limited 
to, the following items and their related paraphernalia: Weapons; 
explosives; drugs; intoxicants; currency; cameras of any type; 
recording equipment; telephones; radios; pagers; electronic devices; 
and any other objects that violate criminal laws or are prohibited by 
Federal regulations or Bureau policies.


Sec.  511.13  Searches before entering, or while inside, a Bureau 
facility or Bureau grounds.

    Bureau staff may search you and your belongings (for example, bags, 
boxes, vehicles, containers in vehicles, jackets or coats, etc.) before 
entering, or while inside, any Bureau facilities or Bureau grounds, to 
keep out prohibited objects.


Sec.  511.14  Notification of possible search.

    We display conspicuous notices at the entrance to all Bureau 
facilities, informing all non-inmates that they, and their belongings, 
are subject to search before entering, or while inside, Bureau 
facilities or grounds. Furthermore, these regulations and Bureau 
national and local policies provide additional notice that you and your 
belongings may be searched before entering, or while inside, Bureau 
facilities or grounds. By entering or attempting to enter a Bureau 
facility or Bureau grounds, non-inmates consent to being searched in 
accordance with these regulations and Bureau policy.


Sec.  511.15  When searches will be conducted.

    You and your belongings may be searched, either randomly or based 
on reasonable suspicion, before entering, or while inside, a Bureau 
facility or Bureau grounds, as follows:
    (a) Random Searches. This type of search may occur at any time, and 
is not based on any particular suspicion that a non-inmate is 
attempting to bring a prohibited object into a Bureau facility or 
Bureau grounds.
    (1) Random searches must be impartial and not discriminate among 
non-inmates on the basis of age, race, religion, national origin, or 
sex.
    (2) Non-inmates will be given the option of either consenting to 
random searches as a condition of entry, or refusing such searches and 
leaving Bureau grounds. However, if a non-inmate refuses to submit to a 
random search and expresses an intent to leave Bureau grounds, he or 
she may still be required to be searched if ``reasonable suspicion'' 
exists as described in paragraph (b) of this section.
    (b) Reasonable Suspicion Searches. Notwithstanding staff authority 
to conduct random searches, staff may also conduct reasonable suspicion 
searches to ensure the safety, security, and orderly operation of 
Bureau facilities, and protect the public. ``Reasonable suspicion'' 
exists if a staff member knows of facts and circumstances that warrant 
rational inferences by a person with correctional experience that a 
non-inmate may be engaged in, attempting, or about to engage in, 
criminal or other prohibited activity.


Sec.  511.16  How searches will be conducted.

    You may be searched by any of the following methods before 
entering, or while inside, a Bureau facility or Bureau grounds:
    (a) Electronically. (1) You and your belongings may be 
electronically searched for the presence of contraband, either randomly 
or upon reasonable suspicion.
    (2) Examples of electronic searches include, but are not limited 
to, metal detectors and ion spectrometry devices.
    (b) Pat Search. (1) You and your belongings may be pat searched 
either randomly or upon reasonable suspicion.

[[Page 31181]]

    (2) A pat search of your person or belongings involves a staff 
member pressing his/her hands on your outer clothing, or the outer 
surface of your belongings, to determine whether prohibited objects are 
present.
    (3) Whenever possible, pat searches of your person will be 
performed by staff members of the same sex. Pat searches may be 
conducted by staff members of the opposite sex only in emergency 
situations with the Warden's authorization.
    (c) Visual Search. You and your belongings may be visually searched 
as follows:
    (1) Person. (i) A visual search of your person involves removing 
all articles of clothing, including religious headwear, to allow a 
visual (non-tactile) inspection of your body surfaces and cavities.
    (ii) Visual searches of your person must always be authorized by 
the Warden or his/her designee and based on reasonable suspicion; 
random visual searches are prohibited.
    (iii) When authorized, visual searches will be performed 
discreetly, in a private area away from others, and by staff members of 
the same sex as the non-inmate being searched. Visual searches may be 
conducted by staff members of the opposite sex in emergency situations 
with the Warden's authorization.
    (iv) Body cavity (tactile) searches of non-inmates are prohibited.
    (2) Belongings. A visual search of your belongings involves opening 
and exposing all contents for visual and manual inspection, and may be 
done either as part of a random search or with reasonable suspicion.
    (d) Drug Testing. (1) You may be tested for use of intoxicating 
substances by any currently reliable testing method, including, but not 
limited to, breathalyzers and urinalysis.
    (2) Drug testing must always be authorized by the Warden or his/her 
designee and must be based on reasonable suspicion that you are under 
the influence of an intoxicating substance upon entering, or while 
inside, a Bureau facility or Bureau grounds.
    (3) Searches of this type will always be performed discreetly, in a 
private area away from others, and by staff members adequately trained 
to perform the test. Whenever possible, urinalysis tests will be 
conducted by staff members of the same sex as the non-inmate being 
tested. Urinalysis tests may be conducted by staff members of the 
opposite sex only in emergency situations with the Warden's 
authorization.


Sec.  511.17  When a non-inmate will be denied entry to or required to 
leave a Bureau facility or Bureau grounds.

    At the Warden's, or his/her designee's, discretion, and based on 
this subpart, you may be denied entry to, or required to leave, a 
Bureau facility or Bureau grounds if:
    (a) You refuse to be searched under this subpart; or
    (b) There is reasonable suspicion that you may be engaged in, 
attempting, or about to engage in, prohibited activity that jeopardizes 
the Bureau's ability to ensure the safety, security, and orderly 
operation of its facilities, or protect the public. ``Reasonable 
suspicion,'' for this purpose, may be based on the results of a search 
conducted under this subpart, or any other reliable information.


Sec.  511.18  When Bureau staff can arrest and detain a non-inmate.

    (a) You may be arrested and detained by Bureau staff anytime there 
is probable cause indicating that you have violated or attempted to 
violate applicable criminal laws while at a Bureau facility, as 
authorized by 18 U.S.C. 3050.
    (b) ``Probable cause'' exists when specific facts and circumstances 
lead a reasonably cautious person (not necessarily a law enforcement 
officer) to believe a violation of criminal law has occurred, and 
warrants consideration for prosecution.
    (c) Non-inmates arrested by Bureau staff under this regulation will 
be physically secured, using minimally necessary force and restraints, 
in a private area of the facility away from others. Appropriate law 
enforcement will be immediately summoned to investigate the incident, 
secure evidence, and commence criminal prosecution.

[FR Doc. E7-10925 Filed 6-5-07; 8:45 am]
BILLING CODE 4410-05-P