[Federal Register Volume 72, Number 132 (Wednesday, July 11, 2007)]
[Rules and Regulations]
[Pages 37630-37632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13403]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 552

[BOP-1089-F]
RIN 1120-AA90


Searches of Housing Units, Inmates, and Inmate Work Areas: 
Electronic Devices

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: This document adopts as final a Bureau of Prisons (Bureau) 
proposed rule on searches of inmates, housing units, and inmate work 
areas with respect to the use of electronic devices. This document also 
withdraws the Bureau's proposal to amend its rules on searches of non-
inmates, which will be incorporated into a new and separate proposed 
rule. We intend this change to provide for the continued efficient and 
secure operation of the institution and prevent the introduction of 
contraband into Bureau institutions.

DATES: Effective Date: August 10, 2007.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534.

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

SUPPLEMENTARY INFORMATION: The Bureau amends its regulations on 
searches of inmates, housing units, and inmate work areas with respect 
to the use of electronic devices (28 CFR part 552, subpart B). This 
document also withdraws the Bureau's proposal to amend its rules on 
searches of non-inmates (28 CFR part 511, subpart B), which has been 
incorporated into a separate rule (72 FR 31178, June 6, 2007, effective 
July 6, 2007). We published a proposed rule contemplating changes to 
both sets of rules on February 25, 1999 (64 FR 9431) (1999 proposed 
rule).

[[Page 37631]]

    Our current regulations allow for the use of electronic devices as 
part of our general security measures. While the regulations refer to 
electronic devices in general in some instances, in other instances, 
they merely refer to metal detectors.
    When we first issued regulations on this subject, the most commonly 
used electronic devices (that we used) were metal detectors. Due to 
advances in technology, new types of electronic devices (such as ion 
spectrometers) are now available which can detect non-metal contraband, 
such as narcotics or illegal drugs. We therefore revise our regulations 
to remove possible confusion regarding the use of the various 
electronic devices. Technically, this is a minor change in policy.
    Regulations on searching visitors. The 1999 proposed rule would 
have amended current procedures for searching visitors in the following 
manner: We had planned to revise the definition of reasonable suspicion 
at 28 CFR 511.11(a), which stated that we may base reasonable suspicion 
on a positive reading of a metal detector, to state that we may base 
reasonable suspicion on an electronic detection device's positive 
reading. We had also planned to revise the reference to ``electronic 
means'' in Sec.  511.12(b)(1) to read ``electronic devices'' to 
maintain consistency.
    However, because the Bureau recently published a final rule (72 FR 
31178, June 6, 2007, effective July 6, 2007) that revises regulations 
on searches of visitors and other non-inmates, we withdrew the change 
contemplated by the 1999 proposed rule, and revisited that change as 
part of the new final rule. We note that the changes made by the final 
rule regarding searches of non-inmates have no impact on the changes 
regarding searches of inmates described below.
    Regulations on searches of housing units, inmates, and inmate work 
areas. The previous regulations required staff to use the least 
intrusive search method practicable, as indicated by the type of 
contraband and the method of suspected introduction. Procedures 
governing pat searches of inmates (Sec.  552.11(a)) further noted that 
a metal detector search may be done under the same circumstances (i.e., 
on a routine or random basis to control contraband).
    We revise these provisions to clarify the role of electronic 
devices in general. We redesignate existing procedures in Sec.  552.11 
to make room for a new paragraph (a) regarding electronic devices. 
Listing electronic devices first emphasizes the non-intrusive nature of 
such searches.

Summary of Public Comment

    We received comment from the American Civil Liberties Union (ACLU) 
and five other respondents, all of whom opposed the proposed rule. The 
ACLU commented only with regard to the portion of the 1999 proposed 
rule relating to searches of non-inmates. Other commenters raised 
concerns similar to those of the ACLU. Because these comments relate to 
the portion of the 1999 proposed rule regarding searches of non-
inmates, we will not address those comments in this document, as we 
published a final rule regarding searching non-inmates (72 FR 31178, 
June 6, 2007, effective July 6, 2007). We address comments regarding 
searches of non-inmates as part of that new rulemaking.
    With regard to the portion relating to searches of inmates, one 
commenter expressed concern that random sampling was susceptible to 
racial profiling. Another was concerned that Bureau staff would be 
unable to operate the electronic detection devices in a fair manner. We 
disagree with concerns raised over possible racial profiling or the 
ability of staff to operate the testing devices in a fair manner. Both 
training for staff and documented procedures for random and follow-up 
sampling ensure nondiscriminatory and professional operation of the 
testing devices.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review, and 
accordingly this rule has not been reviewed by the Office of Management 
and Budget (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 rule 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 rule 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 rule 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 rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule 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.

List of Subjects 28 CFR Part 552

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
Accordingly, 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 552 as set forth 
below.

Subchapter C--Institutional Management

PART 552--CUSTODY

0
1. The authority citation for 28 CFR part 552 continues to read as 
follows:

    Authority: 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.


0
2. In Sec.  552.11, revise the section heading, redesignate paragraphs 
(a) through (c) as paragraphs (b) through (d), add a new paragraph (a), 
and revise newly redesignated (b) to read as follows:

[[Page 37632]]

Sec.  552.11  Searches of inmates.

    (a) Electronic devices. Inspection of an inmate using electronic 
devices (for example, metal detector, or ion spectrometry device) does 
not require the inmate to remove clothing. The inspection includes a 
search of the inmate's clothing and personal effects. Staff may conduct 
an electronic device search of an inmate on a routine or random basis 
to control contraband.
    (b) Pat Search. Inspection of an inmate using the hands does not 
require the inmate to remove clothing. The inspection includes a search 
of the inmate's clothing and personal effects. Staff may conduct a pat 
search of an inmate on a routine or random basis to control contraband.
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 [FR Doc. E7-13403 Filed 7-10-07; 8:45 am]
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