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

SUMMARY: In this document, the Bureau of Prisons is proposing to amend

its regulations on searches of persons other than inmates, searches of

inmates, housing units, and inmate work areas with respect to the use

of electronic devices. This amendment is intended to provide for the

continued efficient and secure operation of the institution and to

prevent the introduction of contraband into Bureau institutions.

DATES: Comments due by April 26, 1999.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons,

HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is proposing to amend

its regulations on searches of persons other than inmates (28 CFR part

511, subpart B) and searches of inmates, housing units, and inmate work

areas (28 CFR part 552, subpart B). A final rule on searching,

detaining, or arresting persons other than inmates was published in the

Federal Register on November 1, 1984 (49 FR 44057), and was amended on

July 18, 1986 (51 FR 26126), February 1, 1991 (56 FR 4159), February 8,

1994 (59 FR 5924 and 5925), and March 10, 1998 (63 FR 11818). A final

rule on searches of housing units, inmates, and inmate work areas was

published in the Federal Register on November 13, 1980 (45 FR 75134)

and was amended on October 21, 1983 (48 FR 48970) and May 6, 1991 (56

FR 21036).

The Bureau's regulations allow for the use of electronic devices as

part of its general security measures. While in some instances the

regulations refer to electronic devices in general, other references

merely refer to metal detectors. At the time the Bureau's regulations

were issued, the most commonly used electronic devices by the Bureau

were metal detectors.

Metal detectors serve to reduce the potential for introducing

weapons into the institutions. Due to advances in technology, new types

of electronic devices are now available which are able to detect other

types of contraband, such as narcotics or illegal drugs. The Bureau is

therefore revising its regulations to remove possible confusion

regarding the use of the various electronic devices.

More specifically, current procedures for searching visitors state

that the Warden may require visitors entering the institution to submit

to a search by electronic means (28 CFR 511.12(b)(1)). However, in the

definition of reasonable suspicion at 28 CFR 511.11(a), we state that a

reasonable suspicion may be based on a positive reading of a metal

detector. We are revising the definition to state that a reasonable

suspicion may be based on a positive reading of an electronic detection

device. The reference to electronic means in Sec. 511.12(b)(1) is

revised to read electronic devices to maintain consistency.

The regulations on searches of housing units, inmates, and inmate

work areas note that staff shall employ the least intrusive method of

search practicable, as indicated by the type of contraband and the

method of suspected introduction. The procedures governing pat searches

of inmates (Sec. 552.11(a)) further note that a metal detector search

may be done under the same circumstances (i.e., on a routine or random

basis to control contraband). We are revising these provisions to

clarify the role of electronic devices in general. The existing

procedures in Sec. 552.11 are being redesignated in order to make room

for a new paragraph (a) pertaining to electronic devices. Listing

electronic devices first emphasizes the non-intrusive nature of such

searches.

Interested persons may participate in this proposed rulemaking by

submitting data, views, or arguments in writing to the Rules Unit,

Office of General Counsel, Bureau of Prisons, 320 First Street, NW.,

HOLC Room 754, Washington, DC 20534. Comments received during the

comment period will be considered before final action is taken.

Comments received after the expiration of the comment period will be

considered to the extent practicable. All comments received remain on

file for public inspection at the above address. The proposed rule may

be changed in light of the comments received. No oral hearings are

contemplated.

Executive Order 12866

This rule falls within a category of actions that the Office of

Management and Budget (OMB) has determined not to constitute

``significant regulatory actions'' under section 3(f) of Executive

Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 12612

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 12612, 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 section 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.

[[Page 9432]]

Plain Language Instructions

We try to write clearly. If you can suggest how to improve the

clarity of these regulations, call or write Roy Nanovic, Office of

General Counsel, Bureau of Prisons, 320 First Street, NW., Washington,

DC 20534, 202-514-6655.

List of Subjects 28 CFR Parts 511 and 552

Prisoners.

Kathleen Hawk Sawyer,

Director, Bureau of Prisons.

Accordingly, pursuant to the rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and delegated to the Director,

Bureau of Prisons in 28 CFR 0.96(p), parts 511 and 552 in subchapters A

and C respectively of chapter V, 28 CFR, are proposed to be amended as

set forth below.

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 511--GENERAL MANAGEMENT POLICY

1. The authority citation for 28 CFR part 511 continues 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; 28 CFR 0.95-0.99, 6.1.

2. In Sec. 511.11, paragraph (a) is revised to read as follows:

Sec. 511.11 Definitions.

(a) Reasonable suspicion. As used in this rule, ``reasonable

suspicion'' exists if the facts and circumstances that are known to the

Warden warrant rational inferences by a person with correctional

experience that a person is engaged, or attempting or about to engage,

in criminal or other prohibited behavior. A reasonable suspicion may be

based on reliable information, even if that information is

confidential; on a positive reading of an electronic device; or when

contraband or an indicia of contraband is found during search of a

visitor's personal effects.

* * * * *

3. In Sec. 511.12, paragraph (b)(1) is revised to read as follows:

Sec. 511.12 Procedures for Searching Visitors.

* * * * *

(b) * * *

(1) By electronic device (for example, metal detector, or ion

spectrometry device).

* * * * *

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 552--CUSTODY

4. 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; 28

CFR 0.95-0.99.

5. In Sec. 552.11, the section heading is revised, paragraphs (a)

through (c) are redesignated as paragraphs (b) through (d), a new

paragraph (a) is added, and newly redesignated (b) is revised to read

as follows:

Sec. 552.11 Searches of inmates.

(a) Electronic devices. An inspection of an inmate, using

electronic devices (for example, metal detector, or ion spectrometry

device) that 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. An inspection of an inmate, using the hands, that

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.

* * * * *

[FR Doc. 99-4734 Filed 2-24-99; 8:45 am]

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