E7-13403. Searches of Housing Units, Inmates, and Inmate Work Areas: Electronic Devices

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

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 [phone].

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).

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 § 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 (§ 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 § 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 § 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.

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

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.

2. In § 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:

§ 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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