National Security; Prevention of Acts of Violence and Terrorism, 16271-16275 [E7-6265]
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Federal Register / Vol. 72, No. 64 / Wednesday, April 4, 2007 / Rules and Regulations
SUMMARY: The Food and Drug
Administration (FDA) is amending the
animal drug regulations to reflect
approval of an abbreviated new animal
drug application (ANADA) filed by Ivy
Laboratories, Div. of Ivy Animal Health,
Inc. The ANADA provides for use of
single-ingredient Type A medicated
articles containing melengestrol and
lasalocid to make two-way combination
drug Type B or Type C medicated feeds
for heifers fed in confinement for
slaughter.
DATES:
This rule is effective April 4,
List of Subjects in 21 CFR Part 558
Animal drugs, Animal feeds.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Center for Veterinary Medicine, 21
CFR part 558 is amended as follows:
I
PART 558—NEW ANIMAL DRUGS FOR
USE IN ANIMAL FEEDS
1. The authority citation for 21 CFR
part 558 continues to read as follows:
I
2007.
Authority: 21 U.S.C. 360b, 371.
John
K. Harshman, Center for Veterinary
Medicine (HFV–104), Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301–827–0169, email: john.harshman@fda.hhs.gov.
SUPPLEMENTARY INFORMATION: Ivy
Laboratories, Div. of Ivy Animal Health,
Inc., 8857 Bond St., Overland Park, KS
66214, filed ANADA 200–451 for use of
HEIFERMAX 500 (melengestrol acetate)
Liquid Premix and BOVATEC (lasalocid
sodium) single-ingredient Type A
medicated articles to make dry and
liquid, two-way combination drug Type
B or Type C medicated feeds for heifers
fed in confinement for slaughter. Ivy
Laboratories’ ANADA 200–451 is
approved as a generic copy of NADA
140–288, sponsored by Pharmacia &
Upjohn Co., a Division of Pfizer, Inc., for
combination use of MGA 500 and
BOVATEC. The application is approved
as of March 12, 2007, and the
regulations are amended in 21 CFR
558.342 to reflect the approval.
In accordance with the freedom of
information provisions of 21 CFR part
20 and 21 CFR 514.11(e)(2)(ii), a
summary of safety and effectiveness
data and information submitted to
support approval of this application
may be seen in the Division of Dockets
Management (HFA–305), Food and Drug
Administration, 5630 Fishers Lane, rm.
1061, Rockville, MD 20852, between 9
a.m. and 4 p.m., Monday through
Friday.
The agency has determined under 21
CFR 25.33(a)(2) that this action is of a
type that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
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FOR FURTHER INFORMATION CONTACT:
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§ 558.342
[Amended]
2. In § 558.342, amend the table in
paragraph (e)(1)(iii) in the ‘‘Sponsor’’
column by adding in numerical
sequence ‘‘021641’’.
I
Dated: March 26, 2007.
Stephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. E7–6180 Filed 4–3–07; 8:45 am]
BILLING CODE 4160–01–S
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Parts 500 and 501
[BOP–1116; AG Order No. 2878–2007]
RIN 1120–AB08
National Security; Prevention of Acts
of Violence and Terrorism
Bureau of Prisons, Department
of Justice.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule finalizes the interim
rules on Special Administrative
Measures that were published on
October 31, 2001 (66 FR 55062). The
previously existing regulations
authorized the Bureau of Prisons
(Bureau), at the direction of the
Attorney General, to impose special
administrative measures with respect to
specified inmates, based on information
provided by senior intelligence or law
enforcement officials, if determined
necessary to prevent the dissemination
of either classified information that
could endanger the national security, or
of other information that could lead to
acts of violence and/or terrorism. The
interim rule extended the period of time
for which such special administrative
measures may be imposed from 120
days to up to one year, and modified the
standards for approving extensions of
such special administrative measures. In
addition, where the Attorney General
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has certified that reasonable suspicion
exists to believe that an inmate may use
communications with attorneys (or
agents traditionally covered by the
attorney-client privilege) to further or
facilitate acts of violence and/or
terrorism, the interim rule amended the
previously existing regulations to
provide that the Bureau must provide
appropriate procedures to monitor or
review such communications to deter
such acts, subject to specific procedural
safeguards, to the extent permitted
under the Constitution and laws of the
United States. The interim rule also
requires the Director of the Bureau of
Prisons to give written notice to the
inmate and attorneys and/or agents
before monitoring or reviewing any
communications as described in this
rule. The interim rule also provided that
the head of each component of the
Department of Justice that has custody
of persons for whom special
administrative measures are determined
to be necessary may exercise the same
authority to impose such measures as
the Director of the Bureau of Prisons.
DATES: Effective date: June 4, 2007.
ADDRESSES: Rules Unit, Office of the
General Counsel, Bureau of Prisons, 320
First Street, NW., Washington, DC
20534.
FOR FURTHER INFORMATION CONTACT:
Sarah Qureshi, Office of the General
Counsel, Bureau of Prisons, (202) 307–
2105.
SUPPLEMENTARY INFORMATION: This rule
finalizes interim rules on Special
Administrative Measures that were
published on October 31, 2001 (66 FR
55062). These rules are codified at 28
CFR 501.2 (national security) and 501.3
(violence and terrorism). We received
approximately 5000 comments in
opposition to the rule, which we discuss
below.
Section 501.2
Section 501.2 authorizes the Director
of the Bureau, at the direction of the
Attorney General, to impose special
administrative measures with respect to
a particular inmate that are reasonably
necessary to prevent disclosure of
classified information. These
procedures may be implemented after
written certification by the head of a
United States intelligence agency that
the unauthorized disclosure of such
information would pose a threat to the
national security and that there is a
danger that the inmate will disclose
such information. These special
administrative measures ordinarily may
include housing the inmate in special
housing units and/or limiting certain
privileges, including, but not limited to,
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Federal Register / Vol. 72, No. 64 / Wednesday, April 4, 2007 / Rules and Regulations
correspondence, visiting, interviews
with representatives of the news media,
and use of the telephone, as is
reasonably necessary to prevent the
disclosure of classified information.
The interim rule made no change in
the substantive standards for the
imposition of special administrative
measures, but changed the initial period
of time under § 501.2 from a fixed 120day period to a period of time
designated by the Director, up to one
year. The rule also allows the Director
to extend the period for the special
administrative measures for additional
one-year periods, based on subsequent
certifications from the head of an
intelligence agency that there is a
danger that the inmate will disclose
classified information and that the
unauthorized disclosure of such
information would pose a threat to
national security. In addition, this rule
provides that the subsequent
certifications by the head of an
intelligence agency may be based on the
information available to the intelligence
agency.
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Section 501.3
Section 501.3 also authorizes the
Director of the Bureau, on direction of
the Attorney General, to impose similar
special administrative measures (with
respect to a particular inmate) that are
reasonably necessary to protect persons
against the risk of death or serious
bodily injury. These procedures may be
implemented after written notification
from the Attorney General or, at the
Attorney General’s discretion, from the
head of a Federal law enforcement or
intelligence agency, that there is a
substantial risk that an inmate’s
communications or contacts with other
persons could result in death or serious
bodily injury to persons, or substantial
damage to property that would entail
the risk of death or serious bodily injury
to persons.
The interim rule made no change in
the substantive standards for the
implementation of special
administrative measures under
§ 501.3(a). However, the interim rule
allows the Director, with the approval of
the Attorney General, to impose special
administrative measures for a longer
period of time, not to exceed one year,
in cases involving acts of violence and/
or terrorism. In addition, the rule
provides authority for the Director to
extend the period for the special
administrative measures for additional
periods, up to one year, after receipt of
additional notification from the
Attorney General or, at the Attorney
General’s discretion, from the head of a
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Federal law enforcement or intelligence
agency.
The interim rule also modified the
standard for approving extensions of the
special administrative measures. The
rule provides that the subsequent
notifications by the Attorney General, or
the head of the Federal law enforcement
or intelligence agency should focus on
the key factual determination—that is,
whether the special administrative
measures continue to be reasonably
necessary, at the time of each
determination, because there is a
substantial risk that an inmate’s
communications or contacts with
persons could result in death or serious
bodily injury to persons, or substantial
damage to property that would entail
the risk of death or serious bodily injury
to persons.
Where the Attorney General, or the
head of a Federal law enforcement or
intelligence agency, initially made such
a determination, then the determination
made at each subsequent review should
not require a de novo review, but only
a determination that there is a
continuing need for the imposition of
special administrative measures in light
of the circumstances.
In either case, the affected inmate may
seek review of any special
administrative measures imposed
pursuant to §§ 501.2 or 501.3 in
accordance with paragraph (a) of this
section through the Administrative
Remedy Program, 28 CFR part 542.
Justification for Special Administrative
Measures Rules
Although this rule does not alter the
substantive standards for the initial
imposition of special administrative
measures under §§ 501.2 and 501.3, the
Bureau’s final rule implementing this
section in 1997 devoted a substantial
portion of the supplementary
information accompanying the rule to a
discussion of the relevant legal issues.
62 FR 33730–31. As the U.S. Supreme
Court noted in Pell v. Procunier, 417
U.S. 817, 822–23 (1974), ‘‘a prison
inmate retains those First Amendment
rights that are not inconsistent with his
status as an inmate or with the
legitimate penological objectives of the
corrections system. * * * An important
function of the corrections system is the
deterrence of crime. * * * Finally,
central to all other corrections goals is
the institutional consideration of
internal security within the corrections
facilities themselves.’’ (Emphasis
added.)
This regulation, with its concern for
security and protection of the public,
clearly meets this test. The changes
made by this rule regarding the length
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of time and the standards for extension
of periods of special administrative
measures do not alter the fundamental
basis of the rules that were adopted in
1997. Instead, they more clearly focus
the provisions for extensions—both the
duration of time and the standards—on
the continuing need for restrictions on
a particular inmate’s ability to
communicate with others within or
outside the detention facility in order to
avoid threats to national security or
risks of terrorism and/or violence.
In every case, the decisions made
with respect to a particular inmate will
reflect a consideration of the issues at
the highest levels of the law
enforcement and intelligence
communities. Where the issue is
protection of national security or
prevention of acts of violence and/or
terrorism, it is appropriate for
government officials, at the highest level
and acting on the basis of their available
law enforcement and intelligence
information, to impose restrictions on
an inmate’s public contacts that may
cause or facilitate such acts.
Comments
We received approximately 5000
comments in opposition to the rule. All
but 44 comments were variations of two
form letters. We also received one
comment in support of the rule. Other
than the single supporting comment, all
comments expressed identical and/or
overlapping themes. We discuss the
comments and our responses below.
Monitoring of Attorney-Client
Communications
Comment: The provision allowing
monitoring of attorney-client
communications breaches attorneyclient privilege and deprives inmates of
the right to effective assistance of
counsel under the Sixth Amendment.
Response: We acknowledge that the
Sixth Amendment limits the
government’s ability to monitor
conversations between a detainee and
his or her attorney. Nonetheless, as we
noted in the preamble to the interim
rule, the fact of monitoring by itself does
not violate the Sixth Amendment right
to effective assistance of counsel.
Weatherford v. Bursey, 429 U.S. 545
(1977). Rather, the propriety of
monitoring turns on a number of factors,
including the purpose for which the
government undertakes the monitoring,
the protections afforded to privileged
communications, and the extent to
which, if at all, the monitoring results
in information being communicated to
prosecutors and used at trial against the
detainee.
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In Weatherford, a government
informant was present at two meetings
between a defendant, Bursey, and his
attorney during which Bursey and the
attorney discussed preparations for
Bursey’s criminal trial. To preserve his
usefulness as an undercover agent, the
informant could not reveal that he was
working for the government and thus sat
through the meetings and heard
discussions pertaining to Bursey’s
defense. Bursey later brought a suit
under 42 U.S.C. 1983, claiming that his
Sixth Amendment right had been
violated. The court of appeals found for
Bursey, holding that the informant’s
presence during the attorney-client
meetings necessarily violated Bursey’s
Sixth Amendment right. The Supreme
Court reversed, explaining that
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[t]he exact contours of the Court of Appeals’
per se right-to-counsel rule are difficult to
discern; but as the Court of Appeals applied
the rule in this case, it would appear that if
an undercover agent meets with a criminal
defendant who is awaiting trial and with his
attorney and if the forthcoming trial is
discussed without the agent’s revealing his
identity, a violation of the defendant’s
constitutional rights has occurred, whatever
was the purpose of the agent in attending the
meeting, whether or not he reported on the
meeting to his superiors, and whether or not
any specific prejudice to the defendant’s
preparation for or conduct of the trial is
demonstrated or otherwise threatened.
Weatherford, 429 U.S. at 550.
The Supreme Court expressly rejected
such a per se rule and denied that
having a government agent hear
attorney-client communications results,
without more, in an automatic violation
of Sixth Amendment rights. Instead, the
Court noted that it was significant that
the government had acted not with the
purpose of learning Bursey’s defense
strategy, but rather with the legitimate
law enforcement purpose of protecting
its informant’s usefulness. Id. at 557.
The Court further explained that
‘‘unless [the informant] communicated
the substance of the Bursey-Wise
conversations and thereby created at
least a realistic possibility of injury to
Bursey or benefit to the State, there can
be no Sixth Amendment violation.’’ Id.
at 557–58.
Thus, the Court indicated that the
Sixth Amendment analysis requires
considering the government’s purpose
in overhearing attorney-client
consultations and whether any
information from overheard
consultations was communicated to the
prosecution in a manner that prejudiced
the defendant.
Weatherford supports the concept that
when the government possesses a
legitimate law enforcement interest in
monitoring detainee-attorney
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conversations, no Sixth Amendment
violation occurs so long as privileged
communications are protected from
disclosure and no information recovered
through monitoring is used by the
government in a way that deprives a
defendant of a fair trial. This rule
adheres to these standards by permitting
monitoring only when the Attorney
General certifies that reasonable
suspicion exists to believe that a
particular detainee may use
communications with attorneys or their
agents to further or facilitate acts of
terrorism, and by establishing a strict
firewall to ensure that attorney-client
communications are not revealed to
prosecutors.
Of course, if the government detects
communications intended to further
acts of terrorism (or other illegal acts),
those communications do not fall
within the scope of the attorney-client
privilege. That privilege affords no
protection for communications that
further ongoing or contemplated illegal
acts, including acts of terrorism. See,
e.g., Clark v. United States, 289 U.S. 1,
15 (1933) (such a client ‘‘will have no
help from the law’’). The crime-fraud
exception applies even if the attorney is
unaware that his professional services
are being sought in furtherance of an
illegal purpose, see, e.g., United States
v. Soudan, 812 F.2d 920, 927 (5th Cir.
1986), and even if the attorney takes no
action to assist the client, see, e.g., In re
Grand Jury Proceedings, 87 F.3d 377,
382 (9th Cir. 1996). A detainee’s efforts
to use his or her lawyer to plan acts of
terrorism simply are not protected by
the attorney-client privilege.
This rule carefully and
conscientiously balances an inmate’s
right to effective assistance of counsel
against the government’s responsibility
to thwart future acts of violence and/or
terrorism perpetrated with the
participation or direction of Federal
inmates. In those cases where the
government has substantial reason to
believe that an inmate may use
communications with attorneys or their
agents to further or facilitate acts of
violence and/or terrorism, the
government has a responsibility to take
reasonable and lawful precautions to
safeguard the public from those acts.
Comment: The monitoring provision
of the rule violates the First Amendment
right to petition the government, which
includes the right to access courts. The
commenter argued that the right to
access courts involves consulting
lawyers in confidence, which, according
to the commenters, is infringed upon by
this rule. Some commenters also argued
that the provision likewise violates the
Fifth Amendment by circumventing due
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process, which requires access to courts
to ‘‘challenge unlawful convictions and
to seek redress for violations’’ of
constitutional rights. Procunier v.
Martinez, 416 U.S. 396, 419 (1974).
Response: For the reasons set forth
above in our discussion of the
monitoring provision and attorneyclient privilege, we disagree that the
rule infringes upon inmates’ rights to
consult lawyers in confidence. Inmates
retain the same ability to access courts
and consult lawyers as they had before
the date of the Special Administrative
Measures interim rule. We therefore do
not change the rule based on these
comments.
Further, no due process rights are
infringed. An inmate whose
conversations with his/her attorney are
monitored will enjoy strict procedural
protections. First, the inmate and
attorney will be notified that their
communications are being monitored
(§ 501.3(d)(2)). Second, a ‘‘privilege
team’’ will conduct the monitoring and
will be separated by a firewall from the
personnel responsible for prosecuting
the inmate (§ 501.3 (d)(3)). Third, the
privilege team may disclose information
only with the prior approval of a
Federal judge or where acts of violence
and/or terrorism are imminent
(§ 501.3(d)(3)). The rule carefully
balances inmates’ need to communicate
with their attorneys against the United
States’ need to prevent future acts of
violence and/or terrorism.
Comment: The monitoring provision
in the rule violates the Fourth
Amendment and Federal wiretapping
statutes (18 U.S.C. 2510–2522).
Commenters posited that before the
government can intercept oral
communications, it must demonstrate to
a Federal judge probable cause to
believe both that a particular individual
is committing a crime, and that the
individual will be communicating about
that crime. 18 U.S.C. 2518(3).
Response: Title 18, § 2518(7) of the
United States Code allows an exception
to the court order requirement upon the
Attorney General’s designee’s
determination that an emergency
situation exists that involves immediate
danger of death or serious physical
injury to any person, or conspiratorial
activities threatening the national
security interest. Section 2518(7), (a)(i)
and (a)(ii). Therefore, if the Attorney
General so authorizes, and if, according
to § 2518(7)(b), there are grounds upon
which a court order could reasonably
have been granted to allow interception
of communications, privilege teams as
authorized by the Attorney General may
monitor attorney-client communications
as provided for in this rule.
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We note that only persons held under
SAM restrictions for acts of violence or
terrorism, where lives are directly at
risk, may potentially be subjected to
monitoring of their attorney-client
conversations. Even then, such attorneyclient monitoring will be resorted to
only after the Attorney General has
made a specific determination that it is
likely that attorney-client
communications will be used to convey
improper messages to or from the SAM
restrictee. Since the effective date of the
interim rule on October 30, 2001, this
provision has been invoked only once,
after the government obtained specific
evidence revealing that the attorney had
previously misused the attorney-client
privilege in order to convey improper
messages to and from her client. In other
words, the Attorney General determined
that the situation involved ‘‘immediate
danger of death or serious physical
injury to any person, or conspiratorial
activities threatening the national
security interest,’’ under 18 U.S.C.
2518(7).
As has been recognized by the United
States Supreme Court (see our response
to the comment above, regarding the
Sixth Amendment), the Sixth
Amendment does not protect an
attorney’s communications with a client
that are made to further the client’s
ongoing or contemplated criminal acts.
Such communications do not assist in
the preparation of a client’s defense,
and, therefore, are not legally privileged.
Still, before such a SAM restriction
may be imposed, the Attorney General
must make a specific determination that
attorney-client communications will be
used to circumvent the purpose of the
SAM, that is, to pass information that
might reasonably lead to acts of violence
or terrorism resulting in death or serious
bodily injury, or cause property damage
that would lead to the infliction of death
or serious bodily injury. Even when
attorney-client communications are to
be monitored for the purposes of the
SAM, these communications remain
subject to the attorney-client privilege to
the extent recognized under applicable
law.
Comment: The monitoring provision
is too broad in that it applies unjustly
to pretrial inmates, immigration
violators, witnesses, and others in
Federal (both Bureau of Prisons and
non-Bureau) custody.
Response: Before this rulemaking,
§§ 501.2 and 501.3 covered only inmates
in Bureau of Prisons custody. However,
there are instances when a person is
held in the custody of other officials of
the Department of Justice (for example,
the Director of the United States
Marshals Service). To ensure consistent
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application of these provisions relating
to special administrative measures in
those circumstances where such
restrictions are necessary, this rule
clarifies that the appropriate officials of
the Department of Justice having
custody of persons for whom special
administrative measures are required
may exercise the same authorities as the
Director of the Bureau of Prisons and
the Warden. In such cases, the persons
upon whom the special administrative
measures are imposed must fall within
the regulatory definition of ‘‘inmate’’ at
§ 500.1.
Previously, the interim rule
identified, as an example of an official
of the Department of Justice who could
exercise the same authorities as the
Director of the Bureau of Prisons and
the Warden, the Commissioner of the
Immigration and Naturalization Service
(INS). See 66 FR 55064 (Applicability to
All Persons in Custody Under the
Authority of the Attorney General). On
March 1, 2003, however, the INS ceased
to exist, and its functions were
transferred to the Department of
Homeland Security (DHS) pursuant to
the Homeland Security Act of 2002
(HSA), Pub. L. No. 107–296, 116 Stat.
2135. Section 441 of the HSA
transferred to DHS all functions of the
detention and removal program
previously under the INS
Commissioner. The Secretary of
Homeland Security, via Delegation No.
7030, delegated all the authority vested
in section 441 of the HSA to the
Immigration and Customs Enforcement
(ICE), a component of DHS.
Accordingly, the detention authority
previously exercised by the INS
Commissioner now rests with ICE.
Given that ICE detainees may be housed
in Bureau facilities or Bureau contract
facilities, this rule would apply to those
inmates.
Inmates convicted of Federal crimes,
and many others in custody at Bureau
facilities or Bureau contract facilities,
such as pretrial inmates, witnesses, and
immigration violators, have equal
potential to attempt to perpetrate acts of
violence and/or terrorism and/or acts
that threaten national security. As
discussed above and in the preamble to
the interim rule (66 FR 55062), neither
the special administrative measures
previously authorized by this rule nor
the monitoring provision currently
authorized by this rule will be imposed
arbitrarily. The Attorney General will
carefully and systematically review each
case and the potential threats before
imposing special administrative
measures or monitoring attorney-client
communications.
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Regarding ‘‘Vagueness’’ of the Rule
According to the commenters, the rule
fails to
1. Detail the Administrative Remedies
available if inmates oppose Special
Administrative Measures (SAM). The
Administrative Remedies available,
which are the same for any issue an
inmate wishes to pursue with the
Bureau, are discussed in 28 CFR part
542.
2. Detail SAM conditions (how long
confined to cell, program participation,
exercise, recreation, training,
association with other inmates). We do
not detail SAM conditions in this rule
because each case varies with the
particular security needs of the inmate
in question.
3. Define the ‘‘substantial standards’’
for imposing SAM.
4. Define what constitutes ‘‘reasonable
suspicion’’ of terrorist activity which
will prompt the Attorney General to
monitor attorney-client
communications.
For items 3 and 4, as we note above,
we do not detail ‘‘substantial standards’’
or what will prompt monitoring of
attorney-client communications because
each case varies with the particular
security concerns raised by each
situation. In general, however, the
Attorney General will determine that
SAMs are necessary in light of clear
evidence that communication or contact
with members of the public could result
in death or serious bodily injury or
damage to property, as stated in the
rule. Generally, this will be shown
through prior acts of violence or
terrorism and evidence of a continuing
threat due to contacts with members of
the public who may contribute to or
undertake acts of violence or terrorism.
5. Define ‘‘acts of violence or
terrorism.’’
The United States Code, Title 18,
2332b, describes ‘‘[a]cts of terrorism
transcending national boundaries.’’ In
particular, the ‘‘Federal crime of
terrorism’’ is defined at length in
subsection (g)(5). As such, we need not
reiterate that definition in the rule text.
Regulatory Certifications
The Department has determined that
this rule is a significant regulatory
action for the purpose of Executive
Order 12866, and accordingly this rule
has been reviewed by the Office of
Management and Budget.
The Department certifies, for the
purpose of the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.), that this rule
will not have a significant economic
impact on a substantial number of small
entities within the meaning of the Act.
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Because this rule pertains to the
management of offenders committed to
the custody of the Department of Justice,
its economic impact is limited to the use
of appropriated funds.
This rule will not have substantial
direct effects on the states, the
relationship between the national
government and the states, or the
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.
List of Subjects in 28 CFR Parts 500 and
501
Prisoners.
Accordingly, under rulemaking
authority vested in the Attorney General
in 5 U.S.C. 552(a), we adopt as final the
interim rule published on October 31,
2001, at 66 FR 55062, without change.
I
Dated: March 29, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7–6265 Filed 4–3–07; 8:45 am]
Portland, 6767 N. Basin Avenue,
Portland, Oregon 97217 between 7 a.m.
and 4 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Petty Officer Lucia Mack, c/o Captain of
the Port, Portland, 6767 N. Basin
Avenue, Portland, Oregon 97217 (503–
240–2590).
SUPPLEMENTARY INFORMATION:
Regulatory Information
We did not publish a notice of
proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B), the
Coast Guard finds that good cause exists
for not publishing an NPRM. If normal
notice and comment procedures were
followed, this rule would not become
effective until after the date of the event.
Publishing an NPRM would be contrary
to the public interest because immediate
action is necessary to ensure the safety
of vessels and spectators gathering in
the vicinity of the fireworks launching
barge.
Background and Purpose
[CGD13–07–012]
The Coast Guard is establishing a
temporary safety zone to protect against
the hazards associated with a fireworks
display. This event occurs on the
Siuslaw River in Florence, Oregon and
is scheduled to start at 10 p.m. and end
at approximately 10:15 p.m. on May 9,
2007. This event may result in a number
of vessels congregating near the
fireworks launching site. The safety
zone is needed to protect watercraft and
their occupants from safety hazards
associated with fireworks displays.
RIN 1625–AA00
Discussion of Rule
Safety Zone; Florence Rhodie Days
Fireworks Display, Siuslaw River,
Florence, OR
This rule establishes a safety zone to
protect vessels and individuals from the
hazards associated with a fireworks
display. The safety zone will be located
on the waters of the Siuslaw River in
Florence, Oregon, encompassed by lines
connecting the following points,
beginning at 43°28′20″ N/124°04′46″ W,
thence to 43°25′07″ N/124°04′40″ W,
thence to 43°57′48″ N/124°05′54″ W,
thence to 43°28′05″ N/124°05′54″ W,
thence to the beginning point. This
safety zone will commence prior to the
launching of the fireworks in order to
clear boaters out of the area for their
own protection, and will last longer
than the scheduled event time in case
the fireworks display lasts longer than
anticipated.
Entry into this zone is prohibited
unless authorized by the Captain of the
Port, Portland, or his designated
representative. The safety zone will be
enforced by representatives of the
Captain of the Port, Portland, who may
BILLING CODE 4410–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
Coast Guard, DHS.
Temporary final rule.
AGENCY:
cprice-sewell on PROD1PC61 with RULES
ACTION:
SUMMARY: The Coast Guard is
establishing a temporary safety zone on
the waters of the Siuslaw River during
a fireworks display. The Captain of the
Port, Portland, Oregon is taking this
action to safeguard watercraft and their
occupants from safety hazards
associated with this display. Entry into
this safety zone is prohibited unless
authorized by the Captain of the Port.
DATES: This rule is effective on May 9,
2007 from 8:30 p.m. until 11:30 p.m.
(PDT).
Documents indicated in this
preamble as being available in the
docket are part of docket (CGD13–07–
012) and are available for inspection or
copying at U.S. Coast Guard Sector
ADDRESSES:
VerDate Aug<31>2005
15:40 Apr 03, 2007
Jkt 211001
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
16275
be assisted by other Federal, State, and
local agencies.
Regulatory Evaluation
This rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order. The rule is not significant
because the safety zone will encompass
a small portion of the river for a short
duration when the vessel traffic is low.
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
The Coast Guard certifies under 5
U.S.C. 605(b) that this rule will not have
a significant economic impact on a
substantial number of small entities.
This rule will affect the following
entities, some of which may be small
entities: The owners or operators of
vessels intending to transit or anchor in
the affected portion of the Siuslaw River
from 8:30 p.m. to 11:30 p.m. on May 9,
2007. This safety zone will not have a
significant economic impact on a
substantial number of small entities for
the following reasons. This rule will be
in effect for only 3 hours late in the day
when vessel traffic is low. Although the
safety zone will apply to the entire
width of the river, traffic will be
allowed to pass through the zone with
the permission of the Captain of the
Port, or his designated representatives
on scene, if it is safe to do so. Before the
effective period, the Coast Guard will
issue maritime advisories widely
available to users of the river.
Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we want to assist small entities in
understanding the rule so that they can
better evaluate its effects on them and
participate in the rulemaking process. If
the rule will affect your small business,
organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please contact the person
E:\FR\FM\04APR1.SGM
04APR1
]]>Agencies
[Federal Register Volume 72, Number 64 (Wednesday, April 4, 2007)]
[Rules and Regulations]
[Pages 16271-16275]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-6265]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Parts 500 and 501
[BOP-1116; AG Order No. 2878-2007]
RIN 1120-AB08
National Security; Prevention of Acts of Violence and Terrorism
AGENCY: Bureau of Prisons, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule finalizes the interim rules on Special
Administrative Measures that were published on October 31, 2001 (66 FR
55062). The previously existing regulations authorized the Bureau of
Prisons (Bureau), at the direction of the Attorney General, to impose
special administrative measures with respect to specified inmates,
based on information provided by senior intelligence or law enforcement
officials, if determined necessary to prevent the dissemination of
either classified information that could endanger the national
security, or of other information that could lead to acts of violence
and/or terrorism. The interim rule extended the period of time for
which such special administrative measures may be imposed from 120 days
to up to one year, and modified the standards for approving extensions
of such special administrative measures. In addition, where the
Attorney General has certified that reasonable suspicion exists to
believe that an inmate may use communications with attorneys (or agents
traditionally covered by the attorney-client privilege) to further or
facilitate acts of violence and/or terrorism, the interim rule amended
the previously existing regulations to provide that the Bureau must
provide appropriate procedures to monitor or review such communications
to deter such acts, subject to specific procedural safeguards, to the
extent permitted under the Constitution and laws of the United States.
The interim rule also requires the Director of the Bureau of Prisons to
give written notice to the inmate and attorneys and/or agents before
monitoring or reviewing any communications as described in this rule.
The interim rule also provided that the head of each component of the
Department of Justice that has custody of persons for whom special
administrative measures are determined to be necessary may exercise the
same authority to impose such measures as the Director of the Bureau of
Prisons.
DATES: Effective date: June 4, 2007.
ADDRESSES: Rules Unit, Office of the General Counsel, Bureau of
Prisons, 320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of the General
Counsel, Bureau of Prisons, (202) 307-2105.
SUPPLEMENTARY INFORMATION: This rule finalizes interim rules on Special
Administrative Measures that were published on October 31, 2001 (66 FR
55062). These rules are codified at 28 CFR 501.2 (national security)
and 501.3 (violence and terrorism). We received approximately 5000
comments in opposition to the rule, which we discuss below.
Section 501.2
Section 501.2 authorizes the Director of the Bureau, at the
direction of the Attorney General, to impose special administrative
measures with respect to a particular inmate that are reasonably
necessary to prevent disclosure of classified information. These
procedures may be implemented after written certification by the head
of a United States intelligence agency that the unauthorized disclosure
of such information would pose a threat to the national security and
that there is a danger that the inmate will disclose such information.
These special administrative measures ordinarily may include housing
the inmate in special housing units and/or limiting certain privileges,
including, but not limited to,
[[Page 16272]]
correspondence, visiting, interviews with representatives of the news
media, and use of the telephone, as is reasonably necessary to prevent
the disclosure of classified information.
The interim rule made no change in the substantive standards for
the imposition of special administrative measures, but changed the
initial period of time under Sec. 501.2 from a fixed 120-day period to
a period of time designated by the Director, up to one year. The rule
also allows the Director to extend the period for the special
administrative measures for additional one-year periods, based on
subsequent certifications from the head of an intelligence agency that
there is a danger that the inmate will disclose classified information
and that the unauthorized disclosure of such information would pose a
threat to national security. In addition, this rule provides that the
subsequent certifications by the head of an intelligence agency may be
based on the information available to the intelligence agency.
Section 501.3
Section 501.3 also authorizes the Director of the Bureau, on
direction of the Attorney General, to impose similar special
administrative measures (with respect to a particular inmate) that are
reasonably necessary to protect persons against the risk of death or
serious bodily injury. These procedures may be implemented after
written notification from the Attorney General or, at the Attorney
General's discretion, from the head of a Federal law enforcement or
intelligence agency, that there is a substantial risk that an inmate's
communications or contacts with other persons could result in death or
serious bodily injury to persons, or substantial damage to property
that would entail the risk of death or serious bodily injury to
persons.
The interim rule made no change in the substantive standards for
the implementation of special administrative measures under Sec.
501.3(a). However, the interim rule allows the Director, with the
approval of the Attorney General, to impose special administrative
measures for a longer period of time, not to exceed one year, in cases
involving acts of violence and/or terrorism. In addition, the rule
provides authority for the Director to extend the period for the
special administrative measures for additional periods, up to one year,
after receipt of additional notification from the Attorney General or,
at the Attorney General's discretion, from the head of a Federal law
enforcement or intelligence agency.
The interim rule also modified the standard for approving
extensions of the special administrative measures. The rule provides
that the subsequent notifications by the Attorney General, or the head
of the Federal law enforcement or intelligence agency should focus on
the key factual determination--that is, whether the special
administrative measures continue to be reasonably necessary, at the
time of each determination, because there is a substantial risk that an
inmate's communications or contacts with persons could result in death
or serious bodily injury to persons, or substantial damage to property
that would entail the risk of death or serious bodily injury to
persons.
Where the Attorney General, or the head of a Federal law
enforcement or intelligence agency, initially made such a
determination, then the determination made at each subsequent review
should not require a de novo review, but only a determination that
there is a continuing need for the imposition of special administrative
measures in light of the circumstances.
In either case, the affected inmate may seek review of any special
administrative measures imposed pursuant to Sec. Sec. 501.2 or 501.3
in accordance with paragraph (a) of this section through the
Administrative Remedy Program, 28 CFR part 542.
Justification for Special Administrative Measures Rules
Although this rule does not alter the substantive standards for the
initial imposition of special administrative measures under Sec. Sec.
501.2 and 501.3, the Bureau's final rule implementing this section in
1997 devoted a substantial portion of the supplementary information
accompanying the rule to a discussion of the relevant legal issues. 62
FR 33730-31. As the U.S. Supreme Court noted in Pell v. Procunier, 417
U.S. 817, 822-23 (1974), ``a prison inmate retains those First
Amendment rights that are not inconsistent with his status as an inmate
or with the legitimate penological objectives of the corrections
system. * * * An important function of the corrections system is the
deterrence of crime. * * * Finally, central to all other corrections
goals is the institutional consideration of internal security within
the corrections facilities themselves.'' (Emphasis added.)
This regulation, with its concern for security and protection of
the public, clearly meets this test. The changes made by this rule
regarding the length of time and the standards for extension of periods
of special administrative measures do not alter the fundamental basis
of the rules that were adopted in 1997. Instead, they more clearly
focus the provisions for extensions--both the duration of time and the
standards--on the continuing need for restrictions on a particular
inmate's ability to communicate with others within or outside the
detention facility in order to avoid threats to national security or
risks of terrorism and/or violence.
In every case, the decisions made with respect to a particular
inmate will reflect a consideration of the issues at the highest levels
of the law enforcement and intelligence communities. Where the issue is
protection of national security or prevention of acts of violence and/
or terrorism, it is appropriate for government officials, at the
highest level and acting on the basis of their available law
enforcement and intelligence information, to impose restrictions on an
inmate's public contacts that may cause or facilitate such acts.
Comments
We received approximately 5000 comments in opposition to the rule.
All but 44 comments were variations of two form letters. We also
received one comment in support of the rule. Other than the single
supporting comment, all comments expressed identical and/or overlapping
themes. We discuss the comments and our responses below.
Monitoring of Attorney-Client Communications
Comment: The provision allowing monitoring of attorney-client
communications breaches attorney-client privilege and deprives inmates
of the right to effective assistance of counsel under the Sixth
Amendment.
Response: We acknowledge that the Sixth Amendment limits the
government's ability to monitor conversations between a detainee and
his or her attorney. Nonetheless, as we noted in the preamble to the
interim rule, the fact of monitoring by itself does not violate the
Sixth Amendment right to effective assistance of counsel. Weatherford
v. Bursey, 429 U.S. 545 (1977). Rather, the propriety of monitoring
turns on a number of factors, including the purpose for which the
government undertakes the monitoring, the protections afforded to
privileged communications, and the extent to which, if at all, the
monitoring results in information being communicated to prosecutors and
used at trial against the detainee.
[[Page 16273]]
In Weatherford, a government informant was present at two meetings
between a defendant, Bursey, and his attorney during which Bursey and
the attorney discussed preparations for Bursey's criminal trial. To
preserve his usefulness as an undercover agent, the informant could not
reveal that he was working for the government and thus sat through the
meetings and heard discussions pertaining to Bursey's defense. Bursey
later brought a suit under 42 U.S.C. 1983, claiming that his Sixth
Amendment right had been violated. The court of appeals found for
Bursey, holding that the informant's presence during the attorney-
client meetings necessarily violated Bursey's Sixth Amendment right.
The Supreme Court reversed, explaining that
[t]he exact contours of the Court of Appeals' per se right-to-
counsel rule are difficult to discern; but as the Court of Appeals
applied the rule in this case, it would appear that if an undercover
agent meets with a criminal defendant who is awaiting trial and with
his attorney and if the forthcoming trial is discussed without the
agent's revealing his identity, a violation of the defendant's
constitutional rights has occurred, whatever was the purpose of the
agent in attending the meeting, whether or not he reported on the
meeting to his superiors, and whether or not any specific prejudice
to the defendant's preparation for or conduct of the trial is
demonstrated or otherwise threatened.
Weatherford, 429 U.S. at 550.
The Supreme Court expressly rejected such a per se rule and denied
that having a government agent hear attorney-client communications
results, without more, in an automatic violation of Sixth Amendment
rights. Instead, the Court noted that it was significant that the
government had acted not with the purpose of learning Bursey's defense
strategy, but rather with the legitimate law enforcement purpose of
protecting its informant's usefulness. Id. at 557. The Court further
explained that ``unless [the informant] communicated the substance of
the Bursey-Wise conversations and thereby created at least a realistic
possibility of injury to Bursey or benefit to the State, there can be
no Sixth Amendment violation.'' Id. at 557-58.
Thus, the Court indicated that the Sixth Amendment analysis
requires considering the government's purpose in overhearing attorney-
client consultations and whether any information from overheard
consultations was communicated to the prosecution in a manner that
prejudiced the defendant.
Weatherford supports the concept that when the government possesses
a legitimate law enforcement interest in monitoring detainee-attorney
conversations, no Sixth Amendment violation occurs so long as
privileged communications are protected from disclosure and no
information recovered through monitoring is used by the government in a
way that deprives a defendant of a fair trial. This rule adheres to
these standards by permitting monitoring only when the Attorney General
certifies that reasonable suspicion exists to believe that a particular
detainee may use communications with attorneys or their agents to
further or facilitate acts of terrorism, and by establishing a strict
firewall to ensure that attorney-client communications are not revealed
to prosecutors.
Of course, if the government detects communications intended to
further acts of terrorism (or other illegal acts), those communications
do not fall within the scope of the attorney-client privilege. That
privilege affords no protection for communications that further ongoing
or contemplated illegal acts, including acts of terrorism. See, e.g.,
Clark v. United States, 289 U.S. 1, 15 (1933) (such a client ``will
have no help from the law''). The crime-fraud exception applies even if
the attorney is unaware that his professional services are being sought
in furtherance of an illegal purpose, see, e.g., United States v.
Soudan, 812 F.2d 920, 927 (5th Cir. 1986), and even if the attorney
takes no action to assist the client, see, e.g., In re Grand Jury
Proceedings, 87 F.3d 377, 382 (9th Cir. 1996). A detainee's efforts to
use his or her lawyer to plan acts of terrorism simply are not
protected by the attorney-client privilege.
This rule carefully and conscientiously balances an inmate's right
to effective assistance of counsel against the government's
responsibility to thwart future acts of violence and/or terrorism
perpetrated with the participation or direction of Federal inmates. In
those cases where the government has substantial reason to believe that
an inmate may use communications with attorneys or their agents to
further or facilitate acts of violence and/or terrorism, the government
has a responsibility to take reasonable and lawful precautions to
safeguard the public from those acts.
Comment: The monitoring provision of the rule violates the First
Amendment right to petition the government, which includes the right to
access courts. The commenter argued that the right to access courts
involves consulting lawyers in confidence, which, according to the
commenters, is infringed upon by this rule. Some commenters also argued
that the provision likewise violates the Fifth Amendment by
circumventing due process, which requires access to courts to
``challenge unlawful convictions and to seek redress for violations''
of constitutional rights. Procunier v. Martinez, 416 U.S. 396, 419
(1974).
Response: For the reasons set forth above in our discussion of the
monitoring provision and attorney-client privilege, we disagree that
the rule infringes upon inmates' rights to consult lawyers in
confidence. Inmates retain the same ability to access courts and
consult lawyers as they had before the date of the Special
Administrative Measures interim rule. We therefore do not change the
rule based on these comments.
Further, no due process rights are infringed. An inmate whose
conversations with his/her attorney are monitored will enjoy strict
procedural protections. First, the inmate and attorney will be notified
that their communications are being monitored (Sec. 501.3(d)(2)).
Second, a ``privilege team'' will conduct the monitoring and will be
separated by a firewall from the personnel responsible for prosecuting
the inmate (Sec. 501.3 (d)(3)). Third, the privilege team may disclose
information only with the prior approval of a Federal judge or where
acts of violence and/or terrorism are imminent (Sec. 501.3(d)(3)). The
rule carefully balances inmates' need to communicate with their
attorneys against the United States' need to prevent future acts of
violence and/or terrorism.
Comment: The monitoring provision in the rule violates the Fourth
Amendment and Federal wiretapping statutes (18 U.S.C. 2510-2522).
Commenters posited that before the government can intercept oral
communications, it must demonstrate to a Federal judge probable cause
to believe both that a particular individual is committing a crime, and
that the individual will be communicating about that crime. 18 U.S.C.
2518(3).
Response: Title 18, Sec. 2518(7) of the United States Code allows
an exception to the court order requirement upon the Attorney General's
designee's determination that an emergency situation exists that
involves immediate danger of death or serious physical injury to any
person, or conspiratorial activities threatening the national security
interest. Section 2518(7), (a)(i) and (a)(ii). Therefore, if the
Attorney General so authorizes, and if, according to Sec. 2518(7)(b),
there are grounds upon which a court order could reasonably have been
granted to allow interception of communications, privilege teams as
authorized by the Attorney General may monitor attorney-client
communications as provided for in this rule.
[[Page 16274]]
We note that only persons held under SAM restrictions for acts of
violence or terrorism, where lives are directly at risk, may
potentially be subjected to monitoring of their attorney-client
conversations. Even then, such attorney-client monitoring will be
resorted to only after the Attorney General has made a specific
determination that it is likely that attorney-client communications
will be used to convey improper messages to or from the SAM restrictee.
Since the effective date of the interim rule on October 30, 2001, this
provision has been invoked only once, after the government obtained
specific evidence revealing that the attorney had previously misused
the attorney-client privilege in order to convey improper messages to
and from her client. In other words, the Attorney General determined
that the situation involved ``immediate danger of death or serious
physical injury to any person, or conspiratorial activities threatening
the national security interest,'' under 18 U.S.C. 2518(7).
As has been recognized by the United States Supreme Court (see our
response to the comment above, regarding the Sixth Amendment), the
Sixth Amendment does not protect an attorney's communications with a
client that are made to further the client's ongoing or contemplated
criminal acts. Such communications do not assist in the preparation of
a client's defense, and, therefore, are not legally privileged.
Still, before such a SAM restriction may be imposed, the Attorney
General must make a specific determination that attorney-client
communications will be used to circumvent the purpose of the SAM, that
is, to pass information that might reasonably lead to acts of violence
or terrorism resulting in death or serious bodily injury, or cause
property damage that would lead to the infliction of death or serious
bodily injury. Even when attorney-client communications are to be
monitored for the purposes of the SAM, these communications remain
subject to the attorney-client privilege to the extent recognized under
applicable law.
Comment: The monitoring provision is too broad in that it applies
unjustly to pretrial inmates, immigration violators, witnesses, and
others in Federal (both Bureau of Prisons and non-Bureau) custody.
Response: Before this rulemaking, Sec. Sec. 501.2 and 501.3
covered only inmates in Bureau of Prisons custody. However, there are
instances when a person is held in the custody of other officials of
the Department of Justice (for example, the Director of the United
States Marshals Service). To ensure consistent application of these
provisions relating to special administrative measures in those
circumstances where such restrictions are necessary, this rule
clarifies that the appropriate officials of the Department of Justice
having custody of persons for whom special administrative measures are
required may exercise the same authorities as the Director of the
Bureau of Prisons and the Warden. In such cases, the persons upon whom
the special administrative measures are imposed must fall within the
regulatory definition of ``inmate'' at Sec. 500.1.
Previously, the interim rule identified, as an example of an
official of the Department of Justice who could exercise the same
authorities as the Director of the Bureau of Prisons and the Warden,
the Commissioner of the Immigration and Naturalization Service (INS).
See 66 FR 55064 (Applicability to All Persons in Custody Under the
Authority of the Attorney General). On March 1, 2003, however, the INS
ceased to exist, and its functions were transferred to the Department
of Homeland Security (DHS) pursuant to the Homeland Security Act of
2002 (HSA), Pub. L. No. 107-296, 116 Stat. 2135. Section 441 of the HSA
transferred to DHS all functions of the detention and removal program
previously under the INS Commissioner. The Secretary of Homeland
Security, via Delegation No. 7030, delegated all the authority vested
in section 441 of the HSA to the Immigration and Customs Enforcement
(ICE), a component of DHS. Accordingly, the detention authority
previously exercised by the INS Commissioner now rests with ICE. Given
that ICE detainees may be housed in Bureau facilities or Bureau
contract facilities, this rule would apply to those inmates.
Inmates convicted of Federal crimes, and many others in custody at
Bureau facilities or Bureau contract facilities, such as pretrial
inmates, witnesses, and immigration violators, have equal potential to
attempt to perpetrate acts of violence and/or terrorism and/or acts
that threaten national security. As discussed above and in the preamble
to the interim rule (66 FR 55062), neither the special administrative
measures previously authorized by this rule nor the monitoring
provision currently authorized by this rule will be imposed
arbitrarily. The Attorney General will carefully and systematically
review each case and the potential threats before imposing special
administrative measures or monitoring attorney-client communications.
Regarding ``Vagueness'' of the Rule
According to the commenters, the rule fails to
1. Detail the Administrative Remedies available if inmates oppose
Special Administrative Measures (SAM). The Administrative Remedies
available, which are the same for any issue an inmate wishes to pursue
with the Bureau, are discussed in 28 CFR part 542.
2. Detail SAM conditions (how long confined to cell, program
participation, exercise, recreation, training, association with other
inmates). We do not detail SAM conditions in this rule because each
case varies with the particular security needs of the inmate in
question.
3. Define the ``substantial standards'' for imposing SAM.
4. Define what constitutes ``reasonable suspicion'' of terrorist
activity which will prompt the Attorney General to monitor attorney-
client communications.
For items 3 and 4, as we note above, we do not detail ``substantial
standards'' or what will prompt monitoring of attorney-client
communications because each case varies with the particular security
concerns raised by each situation. In general, however, the Attorney
General will determine that SAMs are necessary in light of clear
evidence that communication or contact with members of the public could
result in death or serious bodily injury or damage to property, as
stated in the rule. Generally, this will be shown through prior acts of
violence or terrorism and evidence of a continuing threat due to
contacts with members of the public who may contribute to or undertake
acts of violence or terrorism.
5. Define ``acts of violence or terrorism.''
The United States Code, Title 18, 2332b, describes ``[a]cts of
terrorism transcending national boundaries.'' In particular, the
``Federal crime of terrorism'' is defined at length in subsection
(g)(5). As such, we need not reiterate that definition in the rule
text.
Regulatory Certifications
The Department has determined that this rule is a significant
regulatory action for the purpose of Executive Order 12866, and
accordingly this rule has been reviewed by the Office of Management and
Budget.
The Department certifies, for the purpose of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), that this rule will not have a
significant economic impact on a substantial number of small entities
within the meaning of the Act.
[[Page 16275]]
Because this rule pertains to the management of offenders committed to
the custody of the Department of Justice, its economic impact is
limited to the use of appropriated funds.
This rule will not have substantial direct effects on the states,
the relationship between the national government and the states, or the
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.
List of Subjects in 28 CFR Parts 500 and 501
Prisoners.
0
Accordingly, under rulemaking authority vested in the Attorney General
in 5 U.S.C. 552(a), we adopt as final the interim rule published on
October 31, 2001, at 66 FR 55062, without change.
Dated: March 29, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-6265 Filed 4-3-07; 8:45 am]
BILLING CODE 4410-05-P
