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					                                                                                           Wednesday,
                                                                                           October 31, 2001




                                                                                           Part IV

                                                                                           Department of
                                                                                           Justice
                                                                                           Bureau of Prisons

                                                                                           28 CFR Parts 500 and 501
                                                                                           National Security; Prevention of Acts of
                                                                                           Violence and Terrorism; Final Rule




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     55062            Federal Register / Vol. 66, No. 211 / Wednesday, October 31, 2001 / Rules and Regulations

     DEPARTMENT OF JUSTICE                                    Counsel, Bureau of Prisons, (202) 307–                  In either case, the affected inmate may
                                                              2105.                                                 seek review of any special
     Bureau of Prisons                                                                                              administrative measures imposed
                                                              SUPPLEMENTARY INFORMATION:      On June               pursuant to §§ 501.2 or 501.3 in
     28 CFR Parts 500 and 501                                 20, 1997 (62 FR 33732), the Bureau of                 accordance with paragraph (a) of this
                                                              Prisons (‘‘Bureau’’) finalized its interim            section through the Administrative
     [BOP–1116; AG Order No. 2529–2001]                       regulations on the correctional                       Remedy Program, 28 CFR part 542.
                                                              management of inmates whose contacts                    Both rules limit the initial period of
     RIN 1120–AB08                                            with other persons present the potential              special administrative measures to 120
                                                              for disclosure of classified information              days, and provide that additional 120-
     National Security; Prevention of Acts
                                                              that could endanger national security or              day periods may be authorized based on
     of Violence and Terrorism
                                                              of other information that could lead to               a certification or notification that the
     AGENCY: Bureau of Prisons, Department                    acts of violence or terrorism. These rules            circumstances identified in the original
     of Justice.                                              are codified at 28 CFR 501.2 (national                notification continue to exist.
     ACTION: Interim rule with request for                    security) and 501.3 (violence and
                                                              terrorism).                                           Changes to § 501.2 With Respect to
     comment.                                                                                                       National Security
                                                                The Bureau previously had published
     SUMMARY: The current regulations of the                  an interim rule on preventing the                       This rule makes no change in the
     Bureau of Prisons on institutional                       disclosure of classified information in               substantive standards for the imposition
     management authorize the Bureau to                       the Federal Register on October 13,                   of special administrative measures, but
     impose special administrative measures                   1995 (60 FR 53490). No public comment                 changes the initial period of time under
     with respect to specified inmates, based                 was received, and the 1997 final rule                 § 501.2 from a fixed 120-day period to
     on information provided by senior                        adopted the 1995 interim rule with only               a period of time designated by the
     intelligence or law enforcement                          minor changes. In general, § 501.2                    Director, up to one year. Where the head
     officials, where it has been determined                  authorizes the Director of the Bureau of              of an intelligence agency has certified to
     to be necessary to prevent the                           Prisons to impose special administrative              the Attorney General that there is a
     dissemination either of classified                       measures with respect to a particular                 danger that the inmate will disclose
     information that could endanger the                      inmate that are reasonably necessary to               classified information posing a threat to
     national security or of other information                prevent disclosure of classified                      the national security, there is no logical
     that could lead to acts of violence and                  information, upon a written certification             reason to suppose that the threat to the
     terrorism. This rule extends the period                  by the head of a United States                        national security will dissipate after 120
     of time for which such special                           intelligence agency that the                          days. This rule allows the Director to
     administrative measures may be                           unauthorized disclosure of such                       designate a longer period of time, up to
     imposed from 120 days to up to one                                                                             one year, in order to protect the national
                                                              information would pose a threat to the
     year, and modifies the standards for                                                                           security.
                                                              national security and that there is a
     approving extensions of such special                                                                             The rule also allows for the Director
                                                              danger that the inmate will disclose                  to extend the period for the special
     administrative measures. In addition, in                 such information. These special
     those cases where the Attorney General                                                                         administrative measures for additional
                                                              administrative measures ordinarily may                one-year periods, based on subsequent
     has certified that reasonable suspicion                  include housing the inmate in
     exists to believe that an inmate may use                                                                       certifications from the head of an
                                                              administrative detention and/or limiting              intelligence agency. This will ensure a
     communications with attorneys or their                   certain privileges, including, but not
     agents to further or facilitate acts of                                                                        continuing review by the Director and
                                                              limited to, correspondence, visiting,                 the intelligence community of the need
     violence or terrorism, this rule amends                  interviews with representatives of the
     the existing regulations to provide that                                                                       for the special administrative measures
                                                              news media, and use of the telephone,                 in light of the ongoing risks to the
     the Bureau is authorized to monitor                      as is reasonably necessary to prevent the
     mail or communications with attorneys                                                                          national security. Given the serious
                                                              disclosure of classified information.                 nature of the danger to the national
     in order to deter such acts, subject to
     specific procedural safeguards, to the                     The Bureau also had previously                      security, as determined by the head of
     extent permitted under the Constitution                  published a separate interim rule on                  the intelligence agency, this approach
     and laws of the United States. Finally,                  preventing acts of violence and                       reflects an appropriate balancing of the
     this rule provides that the head of each                 terrorism on May 17, 1996 (61 FR                      interests of the individual inmates and
     component of the Department of Justice                   25120). The Bureau’s 1997 final rule                  of the public interest in protecting
     that has custody of persons for whom                     responded at length to the public                     against the disclosure of such national
     special administrative measures are                      comments received on the 1996 interim                 security information.
     determined to be necessary may                           rule. Section 501.3 authorizes the                      In addition, this rule modifies the
     exercise the same authority to impose                    imposition of similar special                         standard for approving extensions of the
     such measures as the Director of the                     administrative measures on a particular               special administrative measures. The
     Bureau of Prisons.                                       inmate based on a written determination               existing regulation requires that the
                                                              by the Attorney General or, at the                    head of the intelligence agency certify
     DATES: Effective date: October 30, 2001.
                                                              Attorney General’s discretion, the head               that ‘‘the circumstances identified in the
       Comment date: Written comments                         of a federal law enforcement or                       original certification continue to exist.’’
     must be submitted on or before                           intelligence agency that there is a                   This standard, however, is
     December 31, 2001.                                       substantial risk that an inmate’s                     unnecessarily static, as it might be read
     ADDRESSES: Rules Unit, Office of the                     communications or contacts with other                 to suggest that the subsequent
     General Counsel, Bureau of Prisons,                      persons could result in death or serious              certifications are limited to a
     HOLC Room 754, 320 First Street, NW.,                    bodily injury to persons, or substantial              reevaluation of the original grounds.
     Washington, DC 20534.                                    damage to property that would entail                  Instead, this rule provides that the
     FOR FURTHER INFORMATION CONTACT:                         the risk of death or serious bodily injury            subsequent certifications by the head of
     Sarah Qureshi, Office of the General                     to persons.                                           an intelligence agency may be based on


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                      Federal Register / Vol. 66, No. 211 / Wednesday, October 31, 2001 / Rules and Regulations                                        55063

     any information available to the                         or orchestration of a terrorist or violent            of the public interest in detecting and
     intelligence agency.                                     criminal conspiracy may vary over time.               deterring acts of terrorism and violence.
                                                                The existing regulation fails to                       Although this rule does not alter the
     Changes to § 501.3 With Respect to                                                                             substantive standards for the initial
     Prevention of Acts of Violence and                       recognize that an inmate still may be an
                                                              integral part of an ongoing conspiracy                imposition of special administrative
     Terrorism                                                                                                      measures under § 501.3, it is worth
                                                              even though his or her activity may
        This rule makes no change in the                      change over time—or, indeed, possibly                 noting that the Bureau’s final rule
     substantive standards for the                            even be dormant for limited periods of                implementing this section in 1997
     implementation of special                                time. Those changes in an inmate’s role               devoted a substantial portion of the
     administrative measures under                            over time, however, would not alter the               supplementary information
     § 501.3(a). The rule also retains the                    significance of the inmate’s role in                  accompanying the rule to a discussion
     existing authority of the Director to                    planning acts of terrorism or violence                of the relevant legal issues. 62 FR
     extend the imposition of the special                     and do not diminish the urgent need for               33730–31. As the U.S. Supreme Court
     administrative measures for additional                   law enforcement authorities to curb the               noted in Pell v. Procunier, 417 U.S. 817,
     periods, based on subsequent                             inmate’s ability to participate in                    822, 823 (1974), ‘‘a prison inmate
     certifications from the Attorney General                 planning or facilitating those acts                   retains those First Amendment rights
     or the head of a federal law enforcement                 through communications with others                    that are not inconsistent with his status
     or intelligence agency. By continuing to                 within or outside the detention facility.             as an inmate or with the legitimate
     apply the existing standards under                       The phraseology of the existing rule also             penological objectives of the corrections
     § 501.3(a), this rule preserves the                      may raise questions about the relevance               system. * * * An important function of
     balance struck in the 1997 final rule and                of more recently acquired information.                the corrections system is the deterrence
     ensures that the inmate’s circumstances                  For these reasons, it would not be                    of crime. * * * Finally, central to all
     will be subject to a continuing review.                                                                        other corrections goals is the
                                                              appropriate to require a factual
        However, this rule also recognizes                                                                          institutional consideration of internal
                                                              determination, in effect, that ‘‘nothing
     that the threats of violence or terrorism                                                                      security within the corrections facilities
     posed by an inmate’s communications                      has changed’’ with respect to the initial
                                                              determination.                                        themselves.’’
     or contacts with his or her associates,                                                                           This regulation, with its concern for
     whether those other persons are within                     Accordingly, this rule provides that                security and protection of the public,
     the detention facility or in the                         the subsequent notifications by the                   clearly meets this test. The changes
     community at large, may in many cases                    Attorney General, or the head of the                  made by this rule, regarding the length
     be manifested on a continuing basis,                     federal law enforcement or intelligence               of time and the standards for extension
     such that the periods for special                        agency should focus on the key factual                of periods of special administrative
     administrative measures need not be                      determination—that is, whether the                    measures, do not alter the fundamental
     limited to 120 days. Accordingly, this                   special administrative measures                       basis of the rules that were adopted in
     rule allows the Director, with the                       continue to be reasonably necessary, at               1997. Instead, they more clearly focus
     approval of the Attorney General, to                     the time of each determination, because               the provisions for extensions—both the
     impose special administrative measures                   there is a substantial risk that an                   duration of time and the standards—on
     for a longer period of time, not to exceed               inmate’s communications or contacts                   the continuing need for restrictions on
     one year, in cases involving acts of                     with persons could result in death or                 a particular inmate’s ability to
     violence or terrorism. In addition, the                  serious bodily injury to persons, or                  communicate with others within or
     rule provides authority for the Director                 substantial damage to property that                   outside the detention facility in order to
     under certain circumstances to provide                   would entail the risk of death or serious             avoid the risks of terrorism and
     for extensions of the period for the                     bodily injury to persons. Where the                   violence. In every case, the decisions
     special administrative measures for                      Attorney General, or the head of a                    made with respect to a particular inmate
     additional periods, up to one year.                      federal law enforcement or intelligence               will reflect a consideration of the issues
        This rule also modifies the standard                  agency, previously has made such a                    at the highest levels of the law
     for approving extensions of the special                  determination, then the determination                 enforcement and intelligence
     administrative measures. The existing                    made at each subsequent review should                 communities. Where the issue is
     regulation requires that the Attorney                    not require a de novo review, but only                prevention of acts of violence and
     General or the head of the federal law                   a determination that there is a                       terrorism, it is appropriate for
     enforcement or intelligence agency                       continuing need for the imposition of                 government officials, at the highest level
     determine that ‘‘the circumstances                       special administrative measures in light              and acting on the basis of their available
     identified in the original notification                  of the circumstances.                                 law enforcement and intelligence
     continue to exist.’’ Again, that standard                  With these changes, § 501.3 will still              information, to impose restrictions on
     is unnecessarily static, as it might be                  ensure a continuing, periodic review by               an inmate’s public contacts that may
     read to suggest that the subsequent                      the Director and the law enforcement                  cause or facilitate such acts.
     determinations are limited to a                          and intelligence communities of the
     reevaluation of the original grounds.                    need for the special administrative                   Monitoring of Communications With
        Recent incidents of terrorism and                     measures in light of the ongoing risks of             Attorneys To Deter Acts of Terrorism
     violence demonstrate, without question,                  terrorism or violent crime. Given the                    In general, the Bureau’s existing
     that some criminal conspiracies develop                  serious nature of the danger to the                   regulations relating to special mail
     and are carried out over a long period—                  public arising from such incidents,                   (§§ 540.18, 540.19), visits (§ 540.48), and
     far in excess of 120 days. During that                   coupled with a determination by the                   telephone calls (§ 540.103) contemplate
     time, as the plans may change or                         Attorney General or the head of a                     that communications between an inmate
     develop, there may be changes in the                     federal law enforcement or intelligence               and his or her attorney are not subject
     level of activity directed toward that                   agency regarding the danger posed by                  to the usual rules for monitoring of
     conspiracy over time by the various                      each particular inmate, this approach                 inmate communications. In specific
     participants. The level of participation                 reflects an appropriate balancing of the              instances, however, based on
     by a particular inmate in the planning                   interests of the individual inmates and               information from federal law


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     55064            Federal Register / Vol. 66, No. 211 / Wednesday, October 31, 2001 / Rules and Regulations

     enforcement or intelligence agencies,                    communications with counsel; and (4)                  reading the memo once he realized it
     the Bureau may have substantial reason                   an emergency procedure for immediate                  contained attorney-client conversation;
     to believe that certain inmates who have                 dissemination of information pertaining               the court cited the screening procedure
     been involved in terrorist activities will               to future acts of violence or terrorism               as a factor in finding that the
     pass messages through their attorneys                    where those acts are determined to be                 government’s intrusion into the defense
     (or the attorney’s legal assistant or an                 imminent.                                             camp was unintentional, and that the
     interpreter) to individuals on the                          The Supreme Court has held that the                intrusion had not benefitted the
     outside for the purpose of continuing                    presence of a government informant                    government). Likewise, firewalls have
     terrorist activities.                                    during conversations between a                        been built so that an entire prosecution
        The existing regulations, of course,                  defendant and his or her attorney may,                office is not disqualified when a lawyer
     recognize the existence of the attorney-                 but need not, impair the defendant’s                  who formerly represented or had a
     client privilege and an inmate’s right to                Sixth Amendment right to effective                    connection to a defendant joins the
     counsel. However, it also is clear that                  assistance of counsel. See Weatherford                prosecutor’s office but has no
     not all communications between an                        v. Bursey, 429 U.S. 545, 552–54 (1977).               involvement in his former client’s
     inmate and an attorney would fall                        When the government possesses a                       prosecution. See Blair v. Armontrout,
     within the scope of that privilege. For                  legitimate law enforcement interest in                916 F.2d 1310, 1333 (8th Cir. 1990).
     example, materials provided to an                        monitoring such conversations, cf.                       This rule carefully and
     attorney that do not relate to the seeking               Massiah v. United States, 377 U.S. 201,               conscientiously balances an inmate’s
     or providing of legal advice are not                     207 (1964), no Sixth Amendment                        right to effective assistance of counsel
     within the attorney-client privilege.                    violation occurs so long as privileged                against the government’s responsibility
     Accordingly, such materials would not                    communications are protected from                     to thwart future acts of violence or
     qualify as special mail under the                        disclosure and no information recovered               terrorism perpetrated with the
     Bureau’s regulations.                                    through monitoring is used by the                     participation or direction of federal
        The attorney-client privilege protects                government in a way that deprives the                 inmates. In those cases where the
     confidential communications regarding                    defendant of a fair trial. The procedures             government has substantial reason to
     legal matters, but the law is clear that                 established in this new rule are                      believe that an inmate may use
     there is no protection for                               designed to ensure that defendants’                   communications with attorneys or their
     communications that are in furtherance                   Sixth Amendment rights are                            agents to further or facilitate acts of
     of the client’s ongoing or contemplated                  scrupulously protected. The                           violence or terrorism, the government
     illegal acts. Clark v. United States, 289                circumstances in which monitoring will                has a responsibility to take reasonable
     U.S. 1, 15 (1933) (such a client ‘‘will                  be permitted are defined narrowly and                 and lawful precautions to safeguard the
     have no help from the law’’); United                     in a way that reflects a very important               public from those acts.
     States v. Gordon-Nikkar, 518 F. 2d 972,                  law enforcement interest: the prevention
     975 (5th Cir. 1975) (‘‘it is beyond                      of acts of violence or terrorism. The                 Applicability to All Persons in Custody
     dispute that the attorney-client privilege               monitoring is not surreptitious; on the               Under the Authority of the Attorney
     does not extend to communications                        contrary, the defendant and his or her                General
     regarding an intended crime’’). The                      attorney are required to be given notice                 The existing §§ 501.2 and 501.3 cover
     crime/fraud exception to the attorney-                   of the government’s listening activities.             only inmates in the custody of the
     client privilege applies even if the                     The rule requires that privileged                     Bureau of Prisons. However, there are
     attorney is unaware that his professional                information not be retained by the                    instances when a person is held in the
     service is being sought in furtherance of                government monitors and that, apart                   custody of other officials under the
     an improper purpose, United States v.                    from disclosures necessary to thwart an               authority of the Attorney General (for
     Soudan, 812 F.2d 920, 927 (5th Cir.                      imminent act of violence or terrorism,                example, the Director of the United
     1986), and the attorney takes no action                  any disclosures to investigators or                   States Marshals Service or the
     to assist the client, In re Grand Jury                   prosecutors must be approved by a                     Commissioner of the Immigration and
     Proceedings, 87 F. 3d 377, 382 (9th Cir.                 federal judge.                                        Naturalization Service). To ensure
     1996).                                                      In following these procedures, it is               consistent application of these
        This rule provides specific authority                 intended that the use of a taint team and             provisions relating to special
     for the monitoring of communications                     the building of a firewall will ensure                administrative measures in those
     between an inmate and his or her                         that the communications which fit                     circumstances where such restrictions
     attorneys or their agents, where there                   under the protection of the attorney-                 are necessary, this rule clarifies that the
     has been a specific determination that                   client privilege will never be revealed to            appropriate officials of the Department
     such actions are reasonably necessary in                 prosecutors and investigators.                        of Justice having custody of persons for
     order to deter future acts of violence or                Procedures such as this have been                     whom special administrative measures
     terrorism, and upon a specific                           approved in matters such as searches of               are required may exercise the same
     notification to the inmate and the                       law offices, See, e.g., National City                 authorities as the Director of the Bureau
     attorneys involved. The rule provides                    Trading Corp. v. United States, 635 F.2d              of Prisons and the Warden.
     for (1) protection of the inmate’s right to              1020, 1026–27 (2d Cir. 1980). In a                       We are also clarifying the definition of
     counsel; (2) the use of a special                        similar vein, screening procedures are                ‘‘inmate’’ to avoid any question whether
     ‘‘privilege team’’ to contemporaneously                  used in wiretap surveillance. See, e.g.,              these regulations apply to all persons in
     monitor an inmate’s communications                       United States v. Noriega, 764 F. Supp.                BOP custody.
     with counsel, pursuant to established                    1480 (S.D. Fla. 1991) (DEA agent
     firewall procedures, when there is a                     unrelated to the case reviewed prison                 Administrative Procedure Act, 5 U.S.C.
     sufficient justification of need to deter                telephone tapes to determine whether                  553
     future acts of violence or terrorism; (3)                they contained any privileged attorney-                 The Department’s implementation of
     a procedure for federal court approval                   client communications; agent                          this rule as an interim rule, with
     prior to the release or dissemination of                 mistakenly reduced one such                           provision for post-promulgation public
     information gleaned by the privilege                     communication to memorandum form,                     comment, is based on the foreign affairs
     team while monitoring the inmate’s                       but the assigned prosecutor stopped                   exception, 5 U.S.C. 553(a), and upon


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                      Federal Register / Vol. 66, No. 211 / Wednesday, October 31, 2001 / Rules and Regulations                                           55065

     findings of good cause pursuant to 5                     entities within the meaning of the Act.                 4. In § 501.2, paragraph (c) is revised
     U.S.C. 553(b)(B) and (d).                                Because this rule pertains to the                     and paragraph (e) is added, to read as
        The immediate implementation of                       management of offenders committed to                  follows:
     this interim rule without public                         the custody of the Department of Justice,
     comment is necessary to ensure that the                  its economic impact is limited to the use             § 501.2    National security cases.
     Department is able to respond to current                 of appropriated funds.                                *      *      *    *    *
     intelligence and law enforcement                            This rule will not have substantial                   (c) Initial placement of an inmate in
     concerns relating to threats to the                      direct effects on the states, the                     administrative detention and/or any
     national security or risks of terrorism or               relationship between the national                     limitation of the inmate’s privileges in
     violent crimes that may arise through                    government and the states, or the                     accordance with paragraph (a) of this
     the ability of particular inmates to                     distribution of power and                             section may be imposed for a period of
     communicate with other persons.                          responsibilities among the various                    time as determined by the Director,
     Recent terrorist activities perpetrated on               levels of government. Therefore, in                   Bureau of Prisons, up to one year.
     United States soil demonstrate the need                  accordance with Executive Order 13132,                Special restrictions imposed in
     for continuing vigilance in addressing                   it is determined that this rule does not              accordance with paragraph (a) of this
     the terrorism and security-related                       have sufficient federalism implications               section may be extended thereafter by
     concerns identified by the law                           to warrant the preparation of a                       the Director, Bureau of Prisons, in
     enforcement and intelligence                             Federalism Assessment.                                increments not to exceed one year, but
     communities. It is imperative that the                                                                         only if the Attorney General receives
     Department have the immediate ability                    List of Subjects in 28 CFR Parts 500 and              from the head of a member agency of the
     to impose special administrative                         501                                                   United States intelligence community
     measures, and to continue those                                                                                an additional written certification that,
                                                                Prisoners.
     measures over time, with respect to                                                                            based on the information available to
     persons in its custody who may                             Accordingly, pursuant to the                        the agency, there is a danger that the
     wrongfully disclose classified                           rulemaking authority vested in the                    inmate will disclose classified
     information that could pose a threat to                  Attorney General in 5 U.S.C. 552(a), part             information and that the unauthorized
     national security or who may be                          501 in subchapter A of 28 CFR, chapter                disclosure of such information would
     planning or facilitating terrorist acts.                 V is amended as set forth below:                      pose a threat to the national security.
        In view of the immediacy of the                       SUBCHAPTER A—GENERAL                                  The authority of the Director under this
     dangers to the public, the need for                      MANAGEMENT AND ADMINISTRATION                         paragraph may not be delegated below
     detecting and deterring communications                                                                         the level of Acting Director.
     from inmates that may facilitate acts of                 PART 500—GENERAL DEFINITIONS                          *      *      *    *    *
     violence or terrorism, and the small                                                                              (e) Other appropriate officials of the
     portion of the inmate population likely                    1. The authority citation for 28 CFR                Department of Justice having custody of
     to be affected, the Department has                       part 500 continues to read as follows:                persons for whom special
     determined that there is good cause to                      Authority: 5 U.S.C. 301; 18 U.S.C. 3621,           administrative measures are required
     publish this interim rule and to make it                 3622, 3624, 4001, 4042, 4081, 4082 (Repealed          may exercise the same authorities under
     effective upon publication, because the                  in part as to offenses committed on or after          this section as the Director of the Bureau
     delays inherent in the regular notice-                   November 1, 1987), 5006–5024 (Repealed                of Prisons and the Warden.
     and-comment process would be                             October 12, 1984 as to offenses committed                4. In § 501.3,
     ‘‘impracticable, unnecessary and                         after that date), 5039; 28 U.S.C. 509, 510; 28          a. Paragraph (c) is revised;
     contrary to the public interest.’’ 5 U.S.C.              CFR 0.95–0.99.                                          b. Paragraph (d) is redesignated as
     553(b)(B), (d). Application of these                       2. In § 500.1, paragraph (c) is revised             paragraph (e); and
     measures is likely to affect only a small                to read as follows:                                     c. New paragraphs (d) and (f) are
     portion of the inmate population: those                                                                        added to read as follows:
     inmates who have been certified by the                   § 500.1   Definitions.
     head of a United States intelligence                                                                           § 501.3 Prevention of acts of violence and
                                                              *     *    *     *    *
                                                                                                                    terrorism.
     agency as posing a threat to the national                  (c) Inmate means all persons in the
     security through the possible disclosure                                                                       *      *      *    *    *
                                                              custody of the Federal Bureau of Prisons                 (c) Initial placement of an inmate in
     of classified information; or for whom                   or Bureau contract facilities, including
     the Attorney General or the head of a                                                                          administrative detention and/or any
                                                              persons charged with or convicted of                  limitation of the inmate’s privileges in
     federal law enforcement or intelligence                  offenses against the United States; D.C.
     agency has determined that there is a                                                                          accordance with paragraph (a) of this
                                                              Code felony offenders; and persons held               section may be imposed for up to 120
     substantial risk that the inmate’s                       as witnesses, detainees, or otherwise.
     communications with others could lead                                                                          days or, with the approval of the
                                                              *     *    *     *    *                               Attorney General, a longer period of
     to violence or terrorism.
                                                                                                                    time not to exceed one year. Special
     Regulatory Certifications                                PART 501—SCOPE OF RULES                               restrictions imposed in accordance with
       The Department has determined that                                                                           paragraph (a) of this section may be
                                                                3. The authority citation for 28 CFR
     this rule is a significant regulatory                                                                          extended thereafter by the Director,
                                                              part 501 continues to read as follows:
     action for the purpose of Executive                                                                            Bureau of Prisons, in increments not to
     Order 12866, and accordingly this rule                      Authority: 5 U.S.C. 301; 18 U.S.C. 3621,           exceed one year, upon receipt by the
     has been reviewed by the Office of                       3622, 3624, 4001, 4042, 4081, 4082 (Repealed          Director of an additional written
                                                              in part as to offenses committed on or after          notification from the Attorney General,
     Management and Budget.                                   November 1, 1987), 4161–4166 (Repealed as
       The Department certifies, for the                      to offenses committed on or after November
                                                                                                                    or, at the Attorney General’s direction,
     purpose of the Regulatory Flexibility                    1, 1987), 5006–5024 (Repealed October 12,             from the head of a federal law
     Act (5 U.S.C. 601 et seq.), that this rule               1984 as to offenses committed after that              enforcement agency or the head of a
     will not have a significant economic                     date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95–         member agency of the United States
     impact on a substantial number of small                  0.99.                                                 intelligence community, that there


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     55066            Federal Register / Vol. 66, No. 211 / Wednesday, October 31, 2001 / Rules and Regulations

     continues to be a substantial risk that                  be in addition to any findings or                     limited to, recordings of privileged
     the inmate’s communications or                           determinations relating to the need for               communications) are not retained
     contacts with other persons could result                 the imposition of other special                       during the course of the monitoring. To
     in death or serious bodily injury to                     administrative measures as provided in                protect the attorney-client privilege and
     persons, or substantial damage to                        paragraph (a) of this section, but may be             to ensure that the investigation is not
     property that would entail the risk of                   incorporated into the same document.                  compromised by exposure to privileged
     death or serious bodily injury to                           (2) Except in the case of prior court              material relating to the investigation or
     persons. The authority of the Director                   authorization, the Director, Bureau of                to defense strategy, a privilege team
     under this paragraph may not be                          Prisons, shall provide written notice to
                                                                                                                    shall be designated, consisting of
     delegated below the level of Acting                      the inmate and to the attorneys
                                                                                                                    individuals not involved in the
     Director.                                                involved, prior to the initiation of any
        (d) In any case where the Attorney                    monitoring or review under this                       underlying investigation. The
     General specifically so orders, based on                 paragraph (d). The notice shall explain:              monitoring shall be conducted pursuant
     information from the head of a federal                      (i) That, notwithstanding the                      to procedures designed to minimize the
     law enforcement or intelligence agency                   provisions of part 540 of this chapter or             intrusion into privileged material or
     that reasonable suspicion exists to                      other rules, all communications                       conversations. Except in cases where
     believe that a particular inmate may use                 between the inmate and attorneys may                  the person in charge of the privilege
     communications with attorneys or their                   be monitored, to the extent determined                team determines that acts of violence or
     agents to further or facilitate acts of                  to be reasonably necessary for the                    terrorism are imminent, the privilege
     terrorism, the Director, Bureau of                       purpose of deterring future acts of                   team shall not disclose any information
     Prisons, shall, in addition to the special               violence or terrorism;                                unless and until such disclosure has
     administrative measures imposed under                       (ii) That communications between the               been approved by a federal judge.
     paragraph (a) of this section, provide                   inmate and attorneys or their agents are              *     *     *     *     *
     appropriate procedures for the                           not protected by the attorney-client
     monitoring or review of                                  privilege if they would facilitate                      (f) Other appropriate officials of the
     communications between that inmate                       criminal acts or a conspiracy to commit               Department of Justice having custody of
     and attorneys or attorneys’ agents who                   criminal acts, or if those                            persons for whom special
     are traditionally covered by the                         communications are not related to the                 administrative measures are required
     attorney-client privilege, for the purpose               seeking or providing of legal advice.                 may exercise the same authorities under
     of deterring future acts that could result                  (3) The Director, Bureau of Prisons,               this section as the Director of the Bureau
     in death or serious bodily injury to                     with the approval of the Assistant                    of Prisons and the Warden.
     persons, or substantial damage to                        Attorney General for the Criminal                       Dated: October 26, 2001.
     property that would entail the risk of                   Division, shall employ appropriate
                                                                                                                    John Ashcroft,
     death or serious bodily injury to                        procedures to ensure that all attorney-
     persons.                                                 client communications are reviewed for                Attorney General.
        (1) The certification by the Attorney                 privilege claims and that any properly                [FR Doc. 01–27472 Filed 10–30–01; 9:35 am]
     General under this paragraph (d) shall                   privileged materials (including, but not              BILLING CODE 4410–05–P




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