[Federal Register Volume 68, Number 44 (Thursday, March 6, 2003)]
[Rules and Regulations]
[Pages 10656-10659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5256]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1082-F]
RIN 1120-AA77


Visiting Regulations: Prior Relationship

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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[[Page 10657]]

SUMMARY: In this document, the Bureau of Prisons (Bureau) amends its 
visiting regulations to require that regular visiting privileges at all 
institutions ordinarily will be extended to friends and associates only 
when the relationship had been established prior to confinement. This 
requirement currently applies to visiting at Medium Security Level, 
High Security Level, and Administrative institutions, but not at Low 
and Minimum Security Level institutions. The purpose of this revision 
is to provide for uniformity of visiting procedures for all security 
levels and to maintain the security and good order of the institution 
while continuing to afford inmates with reasonable and equitable access 
to visiting. Because the prior relationship requirement is to apply to 
regular visitors, we also clarify the distinction between regular and 
special visitors.

EFFECTIVE DATE: April 7, 2003.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: The Bureau amends its regulations on 
visiting (28 CFR part 540, subpart D). We published a proposed rule on 
this subject on May 18, 1999 (64 FR 27166).

Why Is the Bureau Revising the Visiting Regulations?

    As part of a general review of security measures at Bureau 
institutions, this revision is to provide for uniformity of visiting 
procedures for all security levels and to maintain the security and 
good order of the institution while continuing to afford inmates with 
reasonable and equitable access to visiting. The heightened security 
measures were deemed necessary to better ensure that inmates do not 
abuse visiting privileges or use them to further criminal activity.

Who Is Affected by the Changes Made to the Visiting Regulations?

    Inmates currently confined at low or minimum security level 
facilities and any visitor for such inmate who did not have a 
relationship with the inmate prior to the inmate's incarceration are 
affected by this change. As of January 31, 2000, nearly 58,700 federal 
inmates (49% of the total inmate population) are housed in low or 
minimum security level facilities.

Summary of Comments Received and Agency Response

    The Bureau received comments from six respondents. Three commenters 
expressed concerns about the impact on family visits (for example, 
children born after the inmate was incarcerated and new extended family 
members). In response, the Bureau notes that the prior relationship 
requirement pertains to friends and associates (28 CFR 540.44(c)). The 
prior relationship requirement does not apply to immediate family 
members (28 CFR 540.44(a)) and other relatives (28 CFR 540.44(b)).
    One commenter believed that the policy could be easily circumvented 
if the proposed visitors were willing to lie about the prior 
relationship. The Bureau believes that visitors would be ill-advised to 
make false statements as certain federal penalties apply.
    One commenter believes the proposed rule is biased and discourages 
the inmate from making new friends or associates while in prison. This 
commenter believes that if a visitor has no criminal record and poses 
no security threat to the institution that they should not be 
prohibited from visiting.
    The purpose of the amendment is to maintain the security and good 
order of Bureau institutions. In accordance with our security review 
the Bureau believes it is necessary to standardize the prior 
relationship requirement at all security levels. Existing provisions 
still provide for exceptions to the prior relationship rule. The inmate 
retains access to new friends and associates through correspondence and 
the telephone.
    Another commenter believes there is no problem with current 
visiting regulations and that the proposed rule lacks specificity, does 
not provide guidance to staff for administering the regulation, and 
will lead to a lack of uniformity among institutions. As noted above, 
the Bureau believes that for security reasons it is necessary to extend 
the prior relationship provision to all Bureau institutions. The Bureau 
must rely upon the Warden's correctional judgment in making 
determinations for exceptions to the prior relationship requirement.
    The final commenter believes the current background information 
provided by visitors or an NCIC check is sufficient to protect the 
Bureau's interests and that the prior relationship requirement be 
removed for medium security and above institutions. This commenter 
states that the Bureau already has in place a procedure to restrict an 
inmate's visiting privileges and/or a visitor's ability to visit based 
on penological concerns and that further restrictions are not 
necessary. The Bureau assumes that the commenter is referring to the 
Bureau's discipline procedure (see 28 CFR part 541) when he states that 
the Bureau already has in place a procedure to restrict an inmate's 
visiting privileges. The Bureau believes that taking action after the 
fact does not sufficiently address the threat to the orderly operation 
of the visiting room. The Bureau believes, furthermore, that the prior 
relationship requirement serves a legitimate penological purpose at all 
security levels, and that it is necessary to extend the prior 
relationship requirement to minimum and low security level facilities. 
In extending the restrictions, the Bureau has chosen to retain the 
Warden's discretion to make exceptions to the prior relationship 
requirement.
    After due consideration of the comments received, the Bureau is 
adopting the proposed rule as final without change. Members of the 
public may submit comments concerning this rule by writing to the 
previously cited address. These comments will be considered but will 
receive no response in the Federal Register.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule pertains to the 
correctional management of offenders committed to the custody of the 
Attorney General or the Director of the Bureau of Prisons,

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and its economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Sarah Qureshi, Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First St., 
Washington, DC 20534; telephone (202) 307-2105.

List of Subjects in 28 CFR Part 540

    Prisoners.

Kathleen Hawk Sawyer,
Director, Bureau of Prisons.

    Under the rulemaking authority vested in the Attorney General in 5 
U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we 
amend 28 CFR part 540 as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 540--CONTACT WITH PERSONS IN THE COMMUNITY

    1. Revise the authority citation for 28 CFR part 540 to read as 
follows:

    Authority: 5 U.S.C. 301, 551, 552a; 18 U.S.C. 1791, 3621, 3622, 
3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 
509, 510.

    2. Revise the introductory text and paragraph (c) of Sec.  540.44 
to read as follows:


Sec.  540.44  Qualification as regular visitor.

    An inmate desiring to have regular visitors must submit a list of 
proposed visitors to the designated staff. See Sec.  540.45 for 
qualification as special visitor. Staff are to compile a visiting list 
for each inmate after suitable investigation in accordance with Sec.  
540.51(b) of this part. The list may include:
* * * * *
    (c) Friends and associates. The visiting privilege ordinarily will 
be extended to friends and associates having an established 
relationship with the inmate prior to confinement, unless such visits 
could reasonably create a threat to the security and good order of the 
institution. Exceptions to the prior relationship rule may be made, 
particularly for inmates without other visitors, when it is shown that 
the proposed visitor is reliable and poses no threat to the security or 
good order of the institution.
* * * * *

    3. Revise Sec.  540.45 to read as follows:


Sec.  540.45  Qualification as special visitor.

    Persons in the categories listed in this section may qualify as 
special visitors rather than as regular visitors. Visits by special 
visitors ordinarily are for a specific purpose and ordinarily are not 
of a recurring nature. Except as specified, the conditions of visiting 
for special visitors are the same as for regular visitors.
    (a) Business visitor. Except for pretrial inmates, an inmate is not 
permitted to engage actively in a business or profession. An inmate who 
was engaged in a business or profession prior to commitment is expected 
to assign authority for the operation of such business or profession to 
a person in the community.
    Pretrial inmates may be allowed special visitors for the purpose of 
protecting the pretrial inmate's business interests. In those instances 
where an inmate has turned over the operation of a business or 
profession to another person, there still may be an occasion where a 
decision must be made which will substantially affect the assets or 
prospects of the business. The Warden accordingly may permit a special 
business visit in such cases. The Warden may waive the requirement for 
the existence of an established relationship prior to confinement for 
visitors approved under this paragraph.
    (b) Consular visitors. When it has been determined that an inmate 
is a citizen of a foreign country, the Warden must permit the consular 
representative of that country to visit on matters of legitimate 
business. The Warden may not withhold this privilege even though the 
inmate is in disciplinary status. The requirement for the existence of 
an established relationship prior to confinement does not apply to 
consular visitors.
    (c) Representatives of community groups. The Warden may approve 
visits on a recurring basis to representatives from community groups 
(for example, civic, volunteer, or religious organizations) who are 
acting in their official capacity. These visits may be for the purpose 
of meeting with an individual inmate or with a group of inmates. The 
requirement for the existence of an established relationship prior to 
confinement for visitors does not apply to representatives of community 
groups.
    (d) Clergy, former or prospective employers, sponsors, and parole 
advisors. Visitors in this category ordinarily provide assistance in 
release planning, counseling, and discussion of family problems. The 
requirement for the existence of an established relationship prior to 
confinement for visitors does not apply to visitors in this category.

    4. Revise Sec.  540.46 to read as follows:


Sec.  540.46  Attorney visits.

    Requirements for attorney visits are governed by the provisions on 
inmate legal activities (see Sec. Sec.  543.12 through 543.16 of this 
chapter). Provisions pertinent to attorney visits for pretrial inmates 
are contained in Sec.  551.117 of this chapter.

    5. Revise Sec.  540.47 to read as follows:


Sec.  540.47  Media visits.

    Requirements for media visits are governed by the provisions on 
contact with news media (see subpart E of this part). A media 
representative who wishes to visit outside his or her official duties, 
however, must qualify as a regular visitor or, if applicable, a special 
visitor.


Sec.  540.48  [Removed and reserved]

    6. Remove and reserve Sec.  540.48.

    7. In Sec.  540.51, redesignate paragraphs (c) through (g) as 
paragraphs (d) through (h), and add a new paragraph (c) to read as 
follows:


Sec.  540.51  Procedures.

* * * * *
    (c) Verification of special visitor credentials. Staff must verify 
the qualifications of special visitors. Staff may request background 
information and official assignment documentation

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from the potential visitor for this purpose.
* * * * *
[FR Doc. 03-5256 Filed 3-5-03; 8:45 am]
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