80 FR 32000 - Searches of Housing Units, Inmates, and Inmate Work Areas: Use of X-Ray Devices-Clarification of Terminology

DEPARTMENT OF JUSTICE
Bureau of Prisons

Federal Register Volume 80, Issue 108 (June 5, 2015)

In this document, the Bureau of Prisons (Bureau) clarifies that body imaging search devices are ``electronic search devices'' for routine or random use in searching inmates, and are distinguished from medical x-ray devices, which require the inmate's consent, or Regional Director approval, for use as search devices.

[Federal Register Volume 80, Number 108 (Friday, June 5, 2015)]
[Rules and Regulations]
[Pages 32000-32002]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-13710]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 552

[BOP-1162-F]
RIN 1120-AB62


Searches of Housing Units, Inmates, and Inmate Work Areas: Use of 
X-Ray Devices--Clarification of Terminology

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) clarifies 
that body imaging search devices are ``electronic search devices'' for 
routine or random use in searching inmates, and are distinguished from 
medical x-ray devices, which require the inmate's consent, or Regional 
Director approval, for use as search devices.

DATES: This rule is effective on July 6, 2015.

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 its 
regulation on searches of inmates using x-ray devices and technology 
(28 CFR part 552, subpart B). We change this regulation to clarify that 
body imaging search devices are ``electronic search devices'' for 
routine or random use in searching inmates, and are distinguished from 
medical x-ray devices, the use of which require the inmate's consent, 
or Regional Director approval, for use as search devices. We published 
a proposed rule on this subject on February 14, 2014 (79 FR 8910). We 
received a total of twenty comments on the proposed rule. Three 
comments were generally in favor of the proposed changes. Eleven 
comments were copies of the same form letter. We respond below to the 
issues raised by that form letter and the remaining six comments.

The Electronic Devices That the Bureau Uses Are Unsafe or Will Cause 
Harm to Inmates

    Fifteen comments (including the eleven form letters) were concerned 
that the electronic devices used by the Bureau, particularly those 
which use x-ray technology, will be harmful to inmates. Another 
commenter stated that the use of x-ray technology as intended by the 
Bureau is so unsafe that it ``is a clear violation of human rights.''
    The x-ray technology used for searches by the Bureau employs a very 
low level of radiation. Radiation is measured in units called 
``sieverts.'' A person scanned by a Bureau body scanner would receive 
only 0.25 sieverts and can be scanned up to 1,000 times a year. For 
context, a scan from this machine is equal to eating two and a half 
bananas (the potassium in bananas emit radiation). Sleeping next to 
someone exposes you to .05 sieverts, because we all have minerals in 
our bones that emit radiation. Also, people living in areas of high 
elevations are exposed to almost 5 times (1.2 sieverts) as much 
radiation as one scan from a Bureau body scanner, because there is more 
cosmic radiation at high elevations. An airplane flight from New York 
to Los Angeles exposes a human body to 40 sieverts of radiation. Again, 
the Bureau's x-ray technology scanners employ only .25 sieverts, so low 
a level of radiation as to be safe.
    Further, the Bureau requested an independent study (``Radiation 
Protection Report'') of its pilot program use of the ``Radpro 
SecurPass'' technology. The review, conducted in 2012, was generated 
and peer reviewed by radiological physicists holding Certified Health 
Physicist credentials and board certification of the American Board of 
Radiology in Diagnostic Radiology. The Report concluded that the 
average effective reference dose was 0.233 sieverts, which is 
representative of the maximum possible radiation dose for the machine 
to one person for one scan. The Report concluded that the system may be 
operated at that dose level up to 1,000 times per year while 
maintaining the recommended safe radiation dose.
    The use of electronic search devices described in the proposed rule 
is also within established inmate search procedures. There is no impact 
it will have on the federal inmate population which is not already 
present. The proposed rule clarified that body x-ray imaging search 
devices are ``electronic search devices'' for routine or random use in 
searching inmates. This change does not affect physical contact with 
inmates or require disrobement. Other than increased effectiveness at 
identifying contraband through the use of new minimally invasive hand-
held technology, there exists no actual or perceivable difference 
between already-in-use electronic search devices and the proposed x-ray 
search device. In fact, the use of the technology will cut down the 
frequency and need for more invasive searches of the type that inmates 
seek to avoid.
    Further, prisoners, visitors, and staff have diminished Fourth 
Amendment protections in a correctional setting

[[Page 32001]]

under the constellation of rules created by Bell, Hudson, and Turner. 
In Bell v. Wolfish, 441 U.S. 520 (1979) and Hudson v. Palmer, 468 U.S. 
517 (1984), inmates brought challenges to searches of their person and 
cells, respectively. The Bell court noted prisons are uniquely 
dangerous environments, and held that the interest in keeping out 
contraband outweighed inmate privacy concerns. Similarly, the Hudson 
court found prison cell searches are categorically reasonable since a 
prisoner's expectation of privacy must always yield to the paramount 
interest in institutional security. Turner v. Safley, 482 U.S. 78 
(1987) created a new standard: When a prison regulation impinges on the 
constitutional rights of an inmate, staff member, or visitor, the 
regulation is valid if it is reasonably related to legitimate 
penological interests.
    The Turner standard, with the fact-specific principles of Bell have 
been consistently used guidelines to reference for inmate body 
searches. The Supreme Court specifically invoked both cases as primary 
guidance in Florence v. Bd. of Chosen Freeholders of County of 
Burlington. The Court held it was reasonable in a physical search to 
command ``detainees to lift their genitals or cough in a squatting 
position.'' These procedures, similar to the ones upheld in Bell, are 
designed to uncover contraband that can go undetected by a patdown, 
metal detector, and other less invasive searches. 132 S. Ct. 1510, 
1520, 182 L. Ed. 2d 566 (2012). Physical manipulation of an unclothed 
area, however, would not be permissible. Id. The non-contact electronic 
device search is precisely within the ``less-invasive,'' non-
controversial ambit described in Florence.
    It is also important to note that the regulations will retain 
current language stating that use of any electronic device ``does not 
require the inmate to remove clothing.'' 28 CFR 552.11.

Bureau Staff Do Not Have Adequate Training To Use New X-Ray Body Scan 
Technology

    One commenter was concerned that Bureau staff are not qualified to 
use new technology. This is not true. Policy accompanying the change to 
this regulation and the implementation of any new search device under 
these regulations will require training on the use of the devices. 
Operators Manuals for the technological devices will be required for 
all employees who operate the scanners. This training will be re-
implemented annually.

Implementation of the Devices Will Be Costly to the Public

    One commenter felt that ``the cost of instituting [body scanners 
would be] incredible.'' The scanning technology used by the Bureau is 
also routinely used in other public safety sectors (e.g. airport 
security, military, state jail security, etc.) and is not prohibitively 
expensive. The Bureau evaluated and tested several different types of 
whole body imaging devices, some acquired through surplus acquisition 
at no cost from other federal agencies. During the evaluation period, a 
significant amount of dangerous contraband (i.e., weapons, drugs and 
contraband cell phones), were detected with these devices and 
confiscated. Because the technology provides enhanced institution 
security, promotes staff and inmate safety, and ultimately increases 
the safety of the public, the return on investment for the cost of 
these devices is significant. In the Bureau's correctional judgment, 
the loss of life or serious injury, whether staff, inmate or a member 
of the public, is immeasurable and as such, the use of scanning 
technology to prevent such occurrences is reasonable and warranted.
    For the aforementioned reasons, we now finalize the proposed rule 
published on February 14, 2014 (79 FR 8910), without change.

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 a ``significant regulatory action'' under Executive Order 
12866, section 3(f), Regulatory Planning and Review, and accordingly 
this rule has 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 in 28 CFR Part 552

    Prisoners.

Charles E. Samuels, Jr.,
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

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. Revise Sec.  552.11(a) to read as follows:

[[Page 32002]]

Sec.  552.11  Searches of inmates.

    (a) Electronic devices. Inspection of an inmate's person using 
electronic devices (for example, metal detector, ion spectrometry 
device, or body imaging search device) does not require the inmate to 
remove clothing. The inspection may also include 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.
* * * * *

0
3. Revise Sec.  552.13 to read as follows:


Sec.  552.13  Medical x-ray device, major instrument, or surgical 
intrusion.

    (a) The institution physician may authorize use of a major 
instrument (including anoscope or vaginal speculum) or surgical 
intrusion for medical reasons only, with the inmate's consent.
    (b) The institution physician may authorize use of a medical x-ray 
device for medical reasons and only with the consent of the inmate. 
When there exists no reasonable alternative, and an examination using a 
medical x-ray device is determined necessary for the security, good 
order, or discipline of the institution, the Warden, upon approval of 
the Regional Director, may authorize the institution physician to order 
a non-repetitive examination using a medical x-ray device for the 
purpose of determining if contraband is concealed in or on the inmate 
(for example: In a cast or body cavity). The examination using a 
medical x-ray device may not be performed if it is determined by the 
institution physician that it is likely to result in serious or lasting 
medical injury or harm to the inmate. Staff shall place documentation 
of the examination and the reasons for the examination in the inmate's 
central file and medical file.
    (1) The Warden and Regional Director or persons officially acting 
in that capacity may not redelegate the authority to approve an 
examination using medical x-ray device for the purpose of determining 
if contraband is present. An Acting Warden or Acting Regional Director 
may, however, perform this function.
    (2) Staff shall solicit the inmate's consent prior to an 
examination using a medical x-ray device. However, the inmate's consent 
is not required.
    (c) The Warden may direct searches of inanimate objects using a 
medical x-ray device where the inmate is not exposed.

[FR Doc. 2015-13710 Filed 6-4-15; 8:45 am]
 BILLING CODE 4410-05-P