Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations 10989 

substances and can easily absorb the 

costs of administering alfaxalone with 

nominal to no additional economic 

burden. For example, because DEAveterinary practitioners are likely to 

already be schedule IV handlers, they 

already secure schedule II–V controlled 

substances in a securely locked, 

substantially constructed cabinet. See 

21 CFR 1301.75(b). Accordingly, the 

requirement to secure all controlled 

substances containing alfaxalone would 

not impose a significant economic 

burden upon DEA-registered 

practitioners as the infrastructure and 

materials for doing so are already in 

place. Labeling their products is routine 

and in the normal course of business of 

manufacturers. The DEA therefore 

assumes that the cost of compliance 

with 21 CFR part 1302 as a result of this 

final rule is nominal. Correspondingly, 

the DEA estimates that the cost of the 

labeling and packaging requirements of 

this final rule is nominal for the 

authorized manufacturer. Accordingly, 

compliance would not require 

significant additional manpower, capital 

investment, or recordkeeping burdens. 

Because of these facts, this rule will 

not result in a significant economic 

impact on a substantial number of small 

entities. 

Unfunded Mandates Reform Act of 1995 

In accordance with the Unfunded 

Mandates Reform Act (UMRA) of 1995 

(2 U.S.C. 1501 et seq.), the DEA has 

determined and certifies pursuant to 

UMRA that this action would not result 

in any Federal mandate that may result 

‘‘in the expenditure by State, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100,000,000 or 

more (adjusted for inflation) in any one 

year * * * .’’ Therefore, neither a Small 

Government Agency Plan nor any other 

action is required under provisions of 

UMRA of 1995. 

Paperwork Reduction Act of 1995 

This action does not impose a new 

collection of information requirement 

under the Paperwork Reduction Act of 

1995. 44 U.S.C. 3501–3521. This action 

would not impose recordkeeping or 

reporting requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

Congressional Review Act 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Congressional 

Review Act (CRA). This rule will not 

result in: an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreign 

based companies in domestic and 

export markets. However, pursuant to 

the CRA, the DEA has submitted a copy 

of this final rule to both Houses of 

Congress and to the Comptroller 

General. 

List of Subjects in 21 CFR Part 1308 

Administrative practice and 

procedure, Drug traffic control, 

Reporting and recordkeeping 

requirements. 

For the reasons set out above, 21 CFR 

part 1308 is amended as follows: 

PART 1308—SCHEDULES OF 

CONTROLLED SUBSTANCES 

■ 1. The authority citation for 21 CFR 

part 1308 continues to read as follows: 

Authority: 21 U.S.C. 811, 812, 871(b), 

unless otherwise noted. 

■ 2. Amend § 1308.14 by redesignating 

paragraphs (c)(1) through (c)(53) as 

paragraphs (c)(2) through (c)(54) and 

adding new paragraph (c)(1) to read as 

follows: 

§ 1308.14 Schedule IV. 

* * * * * 

(c) * * * 

(1) Alfaxalone—(2731) 

* * * * * 

Dated: February 21, 2014. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2014–04332 Filed 2–26–14; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Office of the Attorney General 

28 CFR Parts 50 and 59 

[Docket No. 145; AG Order No. 3420–2014] 

Policy Regarding Obtaining 

Information From, or Records of, 

Members of the News Media; and 

Regarding Questioning, Arresting, or 

Charging Members of the News Media 

AGENCY: Office of the Attorney General, 

Department of Justice. 

ACTION: Final rule. 

SUMMARY: This rule amends the policy 

of the Department of Justice regarding 

the use of subpoenas, certain court 

orders, and search warrants, to obtain 

information from, or records of, 

members of the news media. The rule 

also amends the Department’s policy 

regarding questioning, arresting, or 

charging members of the news media. 

DATES: This rule is effective on February 

27, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Monique Roth, Director, Office of 

Enforcement Operations, Criminal 

Division, (202) 514–6809. 

SUPPLEMENTARY INFORMATION: 

Discussion 

In May of 2013, the Department 

initiated a comprehensive evaluation of 

its practices and policies regarding the 

use of subpoenas, court orders, and 

search warrants to obtain information 

from, or records of, members of the 

news media. As part of this process, the 

Department convened a series of 

meetings to solicit input from a wide 

range of news media stakeholders, First 

Amendment academics and advocates, 

and Members of Congress. Based on this 

review, the Department issued a report 

on July 12, 2013, announcing changes to 

the Department’s policies. 

This final rule revises the existing 

provisions in the Department’s 

regulations at 28 CFR 50.10. The 

revisions are intended to ensure that, in 

determining whether to seek 

information from, or records of, 

members of the news media, the 

Department strikes the proper balance 

among several vital interests: (1) 

Protecting national security, (2) 

ensuring public safety, (3) promoting 

effective law enforcement and the fair 

administration of justice, and (4) 

safeguarding the essential role of the 

free press in fostering government 

accountability and an open society. 

The revisions also ensure more robust 

oversight by senior Department officials; 

centralize the internal review and 

evaluation process; set out specific 

standards for the use and handling of 

information obtained from, or records 

of, members of the news media; and 

extend the policies to cover the use of 

subpoenas, court orders issued pursuant 

to 18 U.S.C. 2703(d) and 3123, and 

search warrants. 

The changes to the policy also 

strengthen the presumption that 

Department attorneys will negotiate 

with, and provide advance notice to, 

affected members of the news media 

when investigators seek to obtain from 

third parties communications records or 


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10990 Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations 

business records related to ordinary 

newsgathering activities. 

A cross-reference to the new policy 

has been added to part 59, pertaining to 

documentary materials held by third 

parties. 

Regulatory Certifications 

Administrative Procedure Act, 5 U.S.C. 

553 

Because, for purposes of the 

Administrative Procedure Act, this 

regulation concerns general statements 

of policy, or rules of agency 

organization, procedure, or practice, 

notice and comment and a delayed 

effective date are not required. See 5 

U.S.C. 553(b)(A). 

Regulatory Flexibility Act 

Because this final rule is not 

promulgated as a final rule under 5 

U.S.C. 553 and was not required under 

that section to be published as a 

proposed rule, the requirements for the 

preparation of a regulatory flexibility 

analysis under 5 U.S.C. 604(a) do not 

apply. In any event, the Attorney 

General, in accordance with 5 U.S.C. 

605(b), has reviewed this regulation and 

by approving it certifies that this 

regulation will not have a significant 

economic impact on a substantial 

number of small entities because it 

pertains to administrative matters 

affecting the Department. 

Executive Orders 12866 and 13563— 

Regulatory Planning and Review 

This action has been drafted and 

reviewed in accordance with Executive 

Order 12866, Regulatory Planning and 

Review, section 1(b), Principles of 

Regulation. This rule is limited to 

agency organization, management, or 

personnel matters as described by 

section 3(d)(3) of Executive Order 12866 

of September 30, 1993, and therefore is 

not a ‘‘regulation’’ as defined by that 

Executive Order. Accordingly, this 

action has not been reviewed by the 

Office of Management and Budget. 

Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988 of 

February 5, 1996. 

Executive Order 13132—Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132 

of August 4, 1999, this rule does not 

have sufficient federalism implications 

to warrant the preparation of a 

federalism assessment. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995, Public Law 104–4. 

Congressional Review Act 

This action pertains to agency 

management and does not substantially 

affect the rights or obligations of nonagency parties; accordingly, this action 

is not a ‘‘rule’’ as that term is used by 

the Congressional Review Act (Subtitle 

E of the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA)). Therefore, the reporting 

requirement of 5 U.S.C. 801 does not 

apply. 

List of Subjects 

28 CFR Part 50 

Administrative practice and 

procedure, Crime, News, Media, 

Subpoena, Search warrants. 

28 CFR Part 59 

Administrative practice and 

procedure, Privacy, Search warrants. 

Accordingly, for the reasons stated in 

the preamble, parts 50 and 59 of title 28 

of the Code of Federal Regulations are 

amended as follows: 

PART 50—STATEMENTS OF POLICY 

■ 1. The authority citation for part 50 is 

revised to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 

U.S.C. 509, 510, 516, and 519; 42 U.S.C. 1921 

et seq., 1973c; and Pub. L. 107–273, 116 Stat. 

1758, 1824. 

■ 2. Section 50.10 is revised to read as 

follows: 

§ 50.10 Policy regarding obtaining 

information from, or records of, members of 

the news media; and regarding questioning, 

arresting, or charging members of the news 

media. 

(a) Statement of principles. (1) 

Because freedom of the press can be no 

broader than the freedom of members of 

the news media to investigate and report 

the news, the Department’s policy is 

intended to provide protection to 

members of the news media from 

certain law enforcement tools, whether 

criminal or civil, that might 

unreasonably impair ordinary 

newsgathering activities. The policy is 

not intended to extend special 

protections to members of the news 

media who are the focus of criminal 

investigations for conduct not based on, 

or within the scope of, ordinary 

newsgathering activities. 

(2) In determining whether to seek 

information from, or records of, 

members of the news media, the 

approach in every instance must be to 

strike the proper balance among several 

vital interests: protecting national 

security, ensuring public safety, 

promoting effective law enforcement 

and the fair administration of justice, 

and safeguarding the essential role of 

the free press in fostering government 

accountability and an open society. 

(3) The Department views the use of 

certain law enforcement tools, including 

subpoenas, court orders issued pursuant 

to 18 U.S.C. 2703(d) or 3123, and search 

warrants to seek information from, or 

records of, non-consenting members of 

the news media as extraordinary 

measures, not standard investigatory 

practices. Subpoenas or court orders 

issued pursuant to 18 U.S.C. 2703(d) or 

3123, in particular, may be used, after 

authorization by the Attorney General, 

or by another senior official in 

accordance with the exceptions set forth 

in paragraph (c)(3) of this section, only 

to obtain information from, or records 

of, members of the news media when 

the information sought is essential to a 

successful investigation, prosecution, or 

litigation; after all reasonable alternative 

attempts have been made to obtain the 

information from alternative sources; 

and after negotiations with the affected 

member of the news media have been 

pursued, unless the Attorney General 

determines that, for compelling reasons, 

such negotiations would pose a clear 

and substantial threat to the integrity of 

the investigation, risk grave harm to 

national security, or present an 

imminent risk of death or serious bodily 

harm. 

(4) When the Attorney General has 

authorized the use of a subpoena, court 

order issued pursuant to 18 U.S.C. 

2703(d) or 3123, or warrant to obtain 

from a third party communications 

records or business records of a member 

of the news media, the affected member 

of the news media shall be given 

reasonable and timely notice of the 

Attorney General’s determination before 

the use of the subpoena, court order, or 

warrant, unless the Attorney General 

determines that, for compelling reasons, 

such notice would pose a clear and 

substantial threat to the integrity of the 

investigation, risk grave harm to 

national security, or present an 


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Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations 10991 

imminent risk of death or serious bodily 

harm. 

(b) Scope.—(1) Covered individuals 

and entities. (i) The policy governs the 

use of certain law enforcement tools to 

obtain information from, or records of, 

members of the news media. 

(ii) The protections of the policy do 

not extend to any individual or entity 

who is or is reasonably likely to be— 

(A) A foreign power or agent of a 

foreign power, as those terms are 

defined in section 101 of the Foreign 

Intelligence Surveillance Act of 1978 

(50 U.S.C. 1801); 

(B) A member or affiliate of a foreign 

terrorist organization designated under 

section 219(a) of the Immigration and 

Nationality Act (8 U.S.C. 1189(a)); 

(C) Designated as a Specially 

Designated Global Terrorist by the 

Department of the Treasury under 

Executive Order No. 13224 of 

September 23, 2001 (66 FR 49079); 

(D) A specially designated terrorist as 

that term is defined in 31 CFR 595.311 

(or any successor thereto); 

(E) A terrorist organization as that 

term is defined in section 

212(a)(3)(B)(vi) of the Immigration and 

Nationality Act (8 U.S.C. 

1182(a)(3)(B)(vi)); 

(F) Committing or attempting to 

commit a crime of terrorism, as that 

offense is described in 18 U.S.C. 2331(5) 

or 2332b(g)(5); 

(G) Committing or attempting the 

crime of providing material support or 

resources, as that term is defined in 18 

U.S.C. 2339A(b)(1), to a terrorist 

organization; or 

(H) Aiding, abetting, or conspiring in 

illegal activity with a person or 

organization described in paragraphs 

(b)(1)(ii)(A) through (G) of this section. 

(2) Covered law enforcement tools and 

records. (i) The policy governs the use 

by law enforcement authorities of 

subpoenas or, in civil matters, other 

similar compulsory process such as a 

civil investigative demand (collectively 

‘‘subpoenas’’) to obtain information 

from members of the news media, 

including documents, testimony, and 

other materials; and the use by law 

enforcement authorities of subpoenas, 

or court orders issued pursuant to 18 

U.S.C. 2703(d) (‘‘2703(d) order’’) or 18 

U.S.C. 3123 (‘‘3123 order’’), to obtain 

from third parties ‘‘communications 

records’’ or ‘‘business records’’ of 

members of the news media. 

(ii) The policy also governs 

applications for warrants to search the 

premises or property of members of the 

news media, pursuant to Federal Rule of 

Criminal Procedure 41; or to obtain from 

third-party ‘‘communication service 

providers’’ the communications records 

of members of the news media, pursuant 

to 18 U.S.C. 2703(a) and (b). 

(3) Definitions. (i)(A) 

‘‘Communications records’’ include the 

contents of electronic communications 

as well as source and destination 

information associated with 

communications, such as email 

transaction logs and local and long 

distance telephone connection records, 

stored or transmitted by a third-party 

communication service provider with 

which the member of the news media 

has a contractual relationship. 

(B) Communications records do not 

include information described in 18 

U.S.C. 2703(c)(2)(A), (B), (D), (E), and 

(F). 

(ii) A ‘‘communication service 

provider’’ is a provider of an electronic 

communication service or remote 

computing service as defined, 

respectively, in 18 U.S.C. 2510(15) and 

18 U.S.C. 2711(2). 

(iii)(A) ‘‘Business records’’ include 

records of the activities, including the 

financial transactions, of a member of 

the news media related to the coverage, 

investigation, or reporting of news, 

which records are generated or 

maintained by a third party with which 

the member of the news media has a 

contractual relationship. Business 

records are limited to those that could 

provide information about the 

newsgathering techniques or sources of 

a member of the news media. 

(B) Business records do not include 

records unrelated to ordinary 

newsgathering activities, such as those 

related to the purely commercial, 

financial, administrative, or technical, 

operations of a news media entity. 

(C) Business records do not include 

records that are created or maintained 

either by the government or by a 

contractor on behalf of the government. 

(c) Issuing subpoenas to members of 

the news media, or using subpoenas or 

court orders issued pursuant to 18 

U.S.C. 2703(d) or 3123 to obtain from 

third parties communications records or 

business records of a member of the 

news media. (1) Except as set forth in 

paragraph (c)(3) of this section, 

members of the Department must obtain 

the authorization of the Attorney 

General to issue a subpoena to a 

member of the news media; or to use a 

subpoena, 2703(d) order, or 3123 order 

to obtain from a third party 

communications records or business 

records of a member of the news media. 

(2) Requests for the authorization of 

the Attorney General for the issuance of 

a subpoena to a member of the news 

media, or to use a subpoena, 2703(d) 

order, or 3123 order to obtain 

communications records or business 

records of a member of the news media, 

must personally be endorsed by the 

United States Attorney or Assistant 

Attorney General responsible for the 

matter. 

(3) Exceptions to the Attorney General 

authorization requirement. (i)(A) A 

United States Attorney or Assistant 

Attorney General responsible for the 

matter may authorize the issuance of a 

subpoena to a member of the news 

media (e.g., for documents, video or 

audio recordings, testimony, or other 

materials) if the member of the news 

media expressly agrees to provide the 

requested information in response to a 

subpoena. This exception applies, but is 

not limited, to both published and 

unpublished materials and aired and 

unaired recordings. 

(B) In the case of an authorization 

under paragraph (c)(3)(i)(A) of this 

section, the United States Attorney or 

Assistant Attorney General responsible 

for the matter shall provide notice to the 

Director of the Criminal Division’s 

Office of Enforcement Operations 

within 10 business days of the 

authorization of the issuance of the 

subpoena. 

(ii) In light of the intent of the policy 

to protect freedom of the press, ordinary 

newsgathering activities, and 

confidential news media sources, 

authorization of the Attorney General 

will not be required of members of the 

Department in the following 

circumstances: 

(A) To issue subpoenas to news media 

entities for purely commercial, 

financial, administrative, technical, or 

other information unrelated to ordinary 

newsgathering activities; or for 

information or records relating to 

personnel not involved in ordinary 

newsgathering activities. 

(B) To issue subpoenas to members of 

the news media for information related 

to public comments, messages, or 

postings by readers, viewers, customers, 

or subscribers, over which the member 

of the news media does not exercise 

editorial control prior to publication. 

(C) To use subpoenas to obtain 

information from, or to use subpoenas, 

2703(d) orders, or 3123 orders to obtain 

communications records or business 

records of, members of the news media 

who may be perpetrators or victims of, 

or witnesses to, crimes or other events, 

when such status (as a perpetrator, 

victim, or witness) is not based on, or 

within the scope of, ordinary 

newsgathering activities. 

(iii) In the circumstances identified in 

paragraphs (c)(3)(ii)(A) through (C) of 

this section, the United States Attorney 

or Assistant Attorney General 

responsible for the matter must— 


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10992 Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations 

(A) Authorize the use of the subpoena 

or court order; 

(B) Consult with the Criminal 

Division regarding appropriate review 

and safeguarding protocols; and 

(C) Provide a copy of the subpoena or 

court order to the Director of the Office 

of Public Affairs and to the Director of 

the Criminal Division’s Office of 

Enforcement Operations within 10 

business days of the authorization. 

(4) Considerations for the Attorney 

General in determining whether to 

authorize the issuance of a subpoena to 

a member of the news media. (i)(A) In 

criminal matters, there should be 

reasonable grounds to believe, based on 

public information, or information from 

non-media sources, that a crime has 

occurred, and that the information 

sought is essential to a successful 

investigation or prosecution. The 

subpoena should not be used to obtain 

peripheral, nonessential, or speculative 

information. 

(B) In civil matters, there should be 

reasonable grounds to believe, based on 

public information or information from 

non-media sources, that the information 

sought is essential to the successful 

completion of the investigation or 

litigation in a case of substantial 

importance. The subpoena should not 

be used to obtain peripheral, 

nonessential, cumulative, or speculative 

information. 

(ii) The government should have 

made all reasonable attempts to obtain 

the information from alternative, nonmedia sources. 

(iii)(A) The government should have 

pursued negotiations with the affected 

member of the news media, unless the 

Attorney General determines that, for 

compelling reasons, such negotiations 

would pose a clear and substantial 

threat to the integrity of the 

investigation, risk grave harm to 

national security, or present an 

imminent risk of death or serious bodily 

harm. Where the nature of the 

investigation permits, the government 

should have explained to the member of 

the news media the government’s needs 

in a particular investigation or 

prosecution, as well as its willingness to 

address the concerns of the member of 

the news media. 

(B) The obligation to pursue 

negotiations with the affected member 

of the news media, unless excused by 

the Attorney General, is not intended to 

conflict with the requirement that 

members of the Department secure 

authorization from the Attorney General 

to question a member of the news media 

as required in paragraph (f)(1) of this 

section. Accordingly, members of the 

Department do not need to secure 

authorization from the Attorney General 

to pursue negotiations. 

(iv) The proposed subpoena generally 

should be limited to the verification of 

published information and to such 

surrounding circumstances as relate to 

the accuracy of the published 

information. 

(v) In investigations of unauthorized 

disclosures of national defense 

information or of classified information, 

where the Director of National 

Intelligence, after consultation with the 

relevant Department or agency head(s), 

certifies to the Attorney General the 

significance of the harm raised by the 

unauthorized disclosure and that the 

information disclosed was properly 

classified and reaffirms the intelligence 

community’s continued support for the 

investigation and prosecution, the 

Attorney General may authorize the 

Department, in such investigations, to 

issue subpoenas to members of the news 

media. The certification will be sought 

not more than 30 days prior to the 

submission of the approval request to 

the Attorney General. 

(vi) Requests should be treated with 

care to avoid interference with ordinary 

newsgathering activities or claims of 

harassment. 

(vii) The proposed subpoena should 

be narrowly drawn. It should be 

directed at material and relevant 

information regarding a limited subject 

matter, should cover a reasonably 

limited period of time, should avoid 

requiring production of a large volume 

of material, and should give reasonable 

and timely notice of the demand. 

(5) Considerations for the Attorney 

General in determining whether to 

authorize the use of a subpoena, 

2703(d) order, or 3123 order to obtain 

from third parties the communications 

records or business records of a member 

of the news media. (i)(A) In criminal 

matters, there should be reasonable 

grounds to believe, based on public 

information, or information from nonmedia sources, that a crime has been 

committed, and that the information 

sought is essential to the successful 

investigation or prosecution of that 

crime. The subpoena or court order 

should not be used to obtain peripheral, 

nonessential, or speculative 

information. 

(B) In civil matters, there should be 

reasonable grounds to believe, based on 

public information, or information from 

non-media sources, that the information 

sought is essential to the successful 

completion of the investigation or 

litigation in a case of substantial 

importance. The subpoena should not 

be used to obtain peripheral, 

nonessential, cumulative, or speculative 

information. 

(ii) The use of a subpoena or court 

order to obtain from a third party 

communications records or business 

records of a member of the news media 

should be pursued only after the 

government has made all reasonable 

attempts to obtain the information from 

alternative sources. 

(iii)(A) The government should have 

pursued negotiations with the affected 

member of the news media, unless the 

Attorney General determines that, for 

compelling reasons, such negotiations 

would pose a clear and substantial 

threat to the integrity of the 

investigation, risk grave harm to 

national security, or present an 

imminent risk of death or serious bodily 

harm. 

(B) The obligation to pursue 

negotiations with the affected member 

of the news media, unless excused by 

the Attorney General, is not intended to 

conflict with the requirement that 

members of the Department secure 

authorization from the Attorney General 

to question a member of the news media 

as set forth in paragraph (f)(1) of this 

section. Accordingly, members of the 

Department do not need to secure 

authorization from the Attorney General 

to pursue negotiations. 

(iv) In investigations of unauthorized 

disclosures of national defense 

information or of classified information, 

where the Director of National 

Intelligence, after consultation with the 

relevant Department or agency head(s), 

certifies to the Attorney General the 

significance of the harm raised by the 

unauthorized disclosure and that the 

information disclosed was properly 

classified and reaffirms the intelligence 

community’s continued support for the 

investigation and prosecution, the 

Attorney General may authorize the 

Department, in such investigations, to 

use subpoenas or court orders issued 

pursuant to 18 U.S.C. 2703(d) or 3123 to 

obtain communications records or 

business records of a member of the 

news media. The certification will be 

sought not more than 30 days prior to 

the submission of the approval request 

to the Attorney General. 

(v) The proposed subpoena or court 

order should be narrowly drawn. It 

should be directed at material and 

relevant information regarding a limited 

subject matter, should cover a 

reasonably limited period of time, and 

should avoid requiring production of a 

large volume of material. 

(vi) If appropriate, investigators 

should propose to use search protocols 

designed to minimize intrusion into 

potentially protected materials or 


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Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations 10993 

newsgathering activities unrelated to the 

investigation, including but not limited 

to keyword searches (for electronic 

searches) and filter teams (reviewing 

teams separate from the prosecution and 

investigative teams). 

(d) Applying for warrants to search 

the premises, property, or 

communications records of members of 

the news media. (1) Except as set forth 

in paragraph (d)(4) of this section, 

members of the Department must obtain 

the authorization of the Attorney 

General to apply for a warrant to search 

the premises, property, or 

communications records of a member of 

the news media. 

(2) All requests for authorization of 

the Attorney General to apply for a 

warrant to search the premises, 

property, or communications records of 

a member of the news media must 

personally be endorsed by the United 

States Attorney or Assistant Attorney 

General responsible for the matter. 

(3) In determining whether to 

authorize an application for a warrant to 

search the premises, property, or 

contents of communications records of 

a member of the news media, the 

Attorney General should take into 

account the considerations identified in 

paragraph (c)(5) of this section. 

(4) Members of the Department may 

apply for a warrant to obtain work 

product materials or other documentary 

materials of a member of the news 

media pursuant to the ‘‘suspect 

exception’’ of the Privacy Protection Act 

(‘‘PPA suspect exception’’), 42 U.S.C. 

2000aa(a)(1) and (b)(1), only when the 

member of the news media is a focus of 

a criminal investigation for conduct not 

based on, or within the scope of, 

ordinary newsgathering activities. In 

such instances, members of the 

Department must secure authorization 

from a Deputy Assistant Attorney 

General for the Criminal Division. 

(5) Members of the Department 

should not be authorized to apply for a 

warrant to obtain work product 

materials or other documentary 

materials of a member of the news 

media under the PPA suspect exception, 

42 U.S.C. 2000aa(a)(1) & (b)(1), if the 

sole purpose is to further the 

investigation of a person other than the 

member of the news media. 

(6) A Deputy Assistant Attorney 

General for the Criminal Division may 

authorize, under an applicable PPA 

exception, an application for a warrant 

to search the premises, property, or 

communications records of an 

individual other than a member of the 

news media, but who is reasonably 

believed to have ‘‘a purpose to 

disseminate to the public a newspaper, 

book, broadcast, or other similar form of 

public communication.’’ 42 U.S.C. 

2000aa(a) and (b). 

(7) In executing a warrant authorized 

by the Attorney General or by a Deputy 

Assistant Attorney General for the 

Criminal Division investigators should 

use search protocols designed to 

minimize intrusion into potentially 

protected materials or newsgathering 

activities unrelated to the investigation, 

including but not limited to keyword 

searches (for electronic searches) and 

filter teams (reviewing teams separate 

from the prosecution and investigative 

teams). 

(e) Notice to affected member of the 

news media. (1)(i) When the Attorney 

General has authorized the use of a 

subpoena, court order, or warrant to 

obtain from a third party 

communications records or business 

records of a member of the news media, 

the affected member of the news media 

shall be given reasonable and timely 

notice of the Attorney General’s 

determination before the use of the 

subpoena, court order, or warrant, 

unless the Attorney General determines 

that, for compelling reasons, such notice 

would pose a clear and substantial 

threat to the integrity of the 

investigation, risk grave harm to 

national security, or present an 

imminent risk of death or serious bodily 

harm. 

(ii) The mere possibility that notice to 

the affected member of the news media, 

and potential judicial review, might 

delay the investigation is not, on its 

own, a compelling reason to delay 

notice. 

(2) When the Attorney General has 

authorized the use of a subpoena, court 

order, or warrant to obtain 

communications records or business 

records of a member of the news media, 

and the affected member of the news 

media has not been given notice of the 

Attorney General’s determination before 

the use of the subpoena, court order, or 

warrant, the United States Attorney or 

Assistant Attorney General responsible 

for the matter shall provide to the 

affected member of the news media 

notice of the order or warrant as soon 

as it is determined that such notice will 

no longer pose a clear and substantial 

threat to the integrity of the 

investigation, risk grave harm to 

national security, or present an 

imminent risk of death or serious bodily 

harm. In any event, such notice shall 

occur within 45 days of the 

government’s receipt of any return made 

pursuant to the subpoena, court order, 

or warrant, except that the Attorney 

General may authorize delay of notice 

for an additional 45 days if he or she 

determines that, for compelling reasons, 

such notice would pose a clear and 

substantial threat to the integrity of the 

investigation, risk grave harm to 

national security, or present an 

imminent risk of death or serious bodily 

harm. No further delays may be sought 

beyond the 90-day period. 

(3) The United States Attorney or 

Assistant Attorney General responsible 

for the matter shall provide to the 

Director of the Office of Public Affairs 

and to the Director of the Criminal 

Division’s Office of Enforcement 

Operations a copy of any notice to be 

provided to a member of the news 

media whose communications records 

or business records were sought or 

obtained at least 10 business days before 

such notice is provided to the affected 

member of the news media, and 

immediately after such notice is, in fact, 

provided to the affected member of the 

news media. 

(f) Questioning members of the news 

media about, arresting members of the 

news media for, or charging members of 

the news media with, criminal conduct 

they are suspected of having committed 

in the course of, or arising out of, the 

coverage or investigation of news, or 

while engaged in the performance of 

duties undertaken as members of the 

news media. (1) No member of the 

Department shall subject a member of 

the news media to questioning as to any 

offense that he or she is suspected of 

having committed in the course of, or 

arising out of, the coverage or 

investigation of news, or while engaged 

in the performance of duties undertaken 

as a member of the news media, without 

notice to the Director of the Office of 

Public Affairs and the express 

authorization of the Attorney General. 

The government need not view the 

member of the news media as a subject 

or target of an investigation, or have the 

intent to prosecute the member of the 

news media, to trigger the requirement 

that the Attorney General must 

authorize such questioning. 

(2) No member of the Department 

shall seek a warrant for an arrest, or 

conduct an arrest, of a member of the 

news media for any offense that he or 

she is suspected of having committed in 

the course of, or arising out of, the 

coverage or investigation of news, or 

while engaged in the performance of 

duties undertaken as a member of the 

news media, without notice to the 

Director of the Office of Public Affairs 

and the express authorization of the 

Attorney General. 

(3) No member of the Department 

shall present information to a grand jury 

seeking a bill of indictment, or file an 

information, against a member of the 


TKELLEY on DSK3SPTVN1PROD with RULES
10994 Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations 

news media for any offense that he or 

she is suspected of having committed in 

the course of, or arising out of, the 

coverage or investigation of news, or 

while engaged in the performance of 

duties undertaken as a member of the 

news media, without notice to the 

Director of the Office of Public Affairs 

and the express authorization of the 

Attorney General. 

(4) In requesting the Attorney 

General’s authorization to question, to 

arrest or to seek an arrest warrant for, or 

to present information to a grand jury 

seeking an indictment or to file an 

information against, a member of the 

news media for an offense that he or she 

is suspected of having committed 

during the course of, or arising out of, 

the coverage or investigation of news, or 

while engaged in the performance of 

duties undertaken as a member of the 

news media, a member of the 

Department shall state all facts 

necessary for a determination by the 

Attorney General. 

(g) Exigent circumstances. (1) A 

Deputy Assistant Attorney General for 

the Criminal Division may authorize the 

use of a subpoena or court order, as 

described in paragraph (c) of this 

section, or the questioning, arrest, or 

charging of a member of the news 

media, as described in paragraph (f) of 

this section, if he or she determines that 

the exigent use of such law enforcement 

tool or technique is necessary to prevent 

or mitigate an act of terrorism; other acts 

that are reasonably likely to cause 

significant and articulable harm to 

national security; death; kidnapping; 

substantial bodily harm; conduct that 

constitutes a specified offense against a 

minor (for example, as those terms are 

defined in section 111 of the Adam 

Walsh Child Protection and Safety Act 

of 2006, 42 U.S.C. 16911), or an attempt 

or conspiracy to commit such a criminal 

offense; or incapacitation or destruction 

of critical infrastructure (for example, as 

defined in section 1016(e) of the USA 

PATRIOT Act, 42 U.S.C. 5195c(e)). 

(2) A Deputy Assistant Attorney 

General for the Criminal Division may 

authorize an application for a warrant, 

as described in paragraph (d) of this 

section, if there is reason to believe that 

the immediate seizure of the materials at 

issue is necessary to prevent the death 

of, or serious bodily injury to, a human 

being, as provided in 42 U.S.C. 

2000aa(a)(2) and (b)(2). 

(3) Within 10 business days of a 

Deputy Assistant Attorney General for 

the Criminal Division approving a 

request under paragraph (g) of this 

section, the United States Attorney or 

Assistant Attorney General responsible 

for the matter shall provide to the 

Attorney General and to the Director of 

the Office of Public Affairs a statement 

containing the information that would 

have been given in requesting prior 

authorization. 

(h) Failure to comply with policy. 

Failure to obtain the prior approval of 

the Attorney General, as required by this 

policy, may constitute grounds for an 

administrative reprimand or other 

appropriate disciplinary action. 

(i) General provision. This policy is 

not intended to, and does not, create 

any right or benefit, substantive or 

procedural, enforceable at law or in 

equity by any party against the United 

States, its departments, agencies, or 

entities, its officers, employees, or 

agents, or any other person. 

PART 59—GUIDELINES ON METHODS 

OF OBTAINING DOCUMENTARY 

MATERIALS HELD BY THIRD PARTIES 

■ 3. The authority citation for part 59 

continues to read as follows: 

Authority: Sec. 201, Pub. L. 96–440, 94 

Stat. 1879 (42 U.S.C. 2000aa–11). 

■ 4. Section 59.3 is revised by adding a 

new sentence at the end of paragraph (d) 

to read as follows: 

§ 59.3 Applicability. 

* * * * * 

(d) * * * For the use of a warrant to 

obtain information from, or records of, 

members of the news media, see the 

Department’s statement of policy set 

forth in § 50.10 of this chapter. 

Dated: February 21, 2013. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2014–04239 Filed 2–26–14; 8:45 am] 

BILLING CODE 4410–14–P 

POSTAL SERVICE 

39 CFR Part 501 

Revisions to the Requirements for 

Authority to Manufacture and 

Distribute Postage Evidencing 

Systems 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: This rule updates the security 

and revenue protection features of the 

Computerized Meter Resetting System 

(CMRS) and the PC postage payment 

methodology to reflect changes to the 

audit profession’s reporting standards 

on controls at service organizations. 

DATES: This rule is effective March 31, 

2014. 

FOR FURTHER INFORMATION CONTACT: 

Marlo Kay Ivey, Business Programs 

Specialist, Payment Technology, U.S. 

Postal Service, at 202–268–7613. 

SUPPLEMENTARY INFORMATION: When the 

Postal Service was mandated to comply 

with Sarbanes-Oxley regulations 

beginning with the financial statements 

for the fiscal year ending September 30, 

2010, the Postal Service required a 

Statement on Auditing Standards (SAS) 

70 Type II Report from each of our 

providers. Subsequently, the American 

Institute of Certified Public Accountants 

(AICPA) issued new guidance to the 

audit profession on reporting standards 

for controls at service organizations, 

superseding the SAS 70 standards. 

Accordingly, the Postal Service is now 

requiring a Service Organization 

Controls SOC1 Type II report, in 

accordance with Statements on 

Standards for Attestation Engagements 

(SSAEs) 16, in the place of a SAS 70 

Type II report, from each of our 

providers. We have also clarified that 

the expense incurred from obtaining 

this report will be paid by the provider. 

List of Subjects in 39 CFR Part 501 

Administrative practice and 

procedure. 

Accordingly, for the reasons stated, 39 

CFR part 501 is amended as follows: 

PART 501—AUTHORIZATION TO 

MANUFACTURE AND DISTRIBUTE 

POSTAGE EVIDENCING SYSTEMS 

■ 1. The authority citation for 39 CFR 

part 501 continues to read as follows: 

Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 

401, 403, 404, 410, 2601, 2605, Inspector 

General Act of 1978, as amended (Pub. L. 95– 

452, as amended); 5 U.S.C. App. 3. 

■ 2. Section 501.15 is amended by 

revising paragraph (i) to read as follows: 

§ 501.15 Computerized Meter Resetting 

System. 

* * * * * 

(i) Security and Revenue Protection. 

To receive Postal Service approval to 

continue to operate systems in the 

CMRS environment, the RC must submit 

to a periodic examination of its CMRS 

system and any other applications and 

technology infrastructure that may have 

a material impact on Postal Service 

revenues, as determined by the Postal 

Service. The examination shall be 

performed by a qualified, independent 

audit firm and shall be conducted in 

accordance with the Statements on 

Standards for Attestation Engagements 

(SSAEs) No. 16, Service Organizations, 

developed by the American Institute of 

Certified Public Accountants (AICPA), 

as amended or superseded. Expenses 

associated with such examination shall 

be incurred by the RC. The examination 


TKELLEY on DSK3SPTVN1PROD with RULES