[Federal Register Volume 89, Number 26 (Wednesday, February 7, 2024)]
[Rules and Regulations]
[Pages 8330-8332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02470]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 543

[BOP-1175-I]
RIN 1120-AB75


Inmate Legal Activities: Visits by Attorneys

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Bureau of Prisons (Bureau) amends regulations in 28 CFR 
part 543, subpart B--Inmate Legal Activities to revise procedures 
governing attorney visits.

DATES: 
    Effective date: This rule is effective February 7, 2024.
    Comments: Written comments must be postmarked and electronic 
comments must be submitted on or before April 8, 2024. Commenters 
should be aware that the electronic Federal Docket Management System 
will not accept comments after Midnight Eastern Time on the last day of 
the comment period.

ADDRESSES: If you wish to provide comment regarding this rulemaking, 
you must submit comments, identified by the agency name and reference 
Docket No. BOP 1175 or RIN 1120-AB75, by one of the two methods below.
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
website instructions for submitting comments. The electronic Federal 
Docket Management System at www.regulations.gov will accept electronic 
comments until 11:59 p.m. Eastern Time on the comment due date.
    Mail: Paper comments that duplicate an electronic submission are 
unnecessary. If you wish to submit a paper comment in lieu of 
electronic submission, please direct the mail/shipment to: Rules 
Administrator, Legislative and Correctional Issues Branch, Office of 
General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC 
20534. To ensure proper handling, please reference the agency name and 
Docket No. BOP 1175 or RIN 1120-AB75 on your correspondence. Mailed 
items must be postmarked or otherwise indicate a shipping date on or 
before the submission deadline.

FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant 
General Counsel/Rules Administrator, Federal Bureau of Prisons, at the 
address above or at (202) 353-4885.

SUPPLEMENTARY INFORMATION: Please note that all comments received are 
considered part of the public record and made available for public 
inspection online at www.regulations.gov. If you want to submit 
personal identifying information (such as your name, address, etc.) as 
part of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You must also locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
contains so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted 
www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

II. Background

    On July 20, 2023, the Deputy Attorney General issued a memorandum 
instructing the Bureau to implement the Report and Recommendations 
(Report) of the Advisory Group on Access to Counsel, which focused on 
access to counsel at Bureau pretrial facilities.\1\ The Report provides 
an overview of the Department of Justice's (Department) approach to 
ensuring access to counsel in Bureau pretrial facilities and recommends 
specific measures to promote such access.\2\ Among the 30 
recommendations included is recommendation 2.1., which provides:
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    \1\ U.S. Dep't of Justice, Report and Recommendations Concerning 
Access to Counsel at the Federal Bureau of Prisons' Pretrial 
Facilities (July 20, 2023), available at https://www.justice.gov/d9/2023-07/2023.07.20_atj_bop_access_to_counsel_report.pdf.
    \2\ Id., at i.

    Update BOP's regulations related to scheduling legal visits to 
conform with current practice. BOP's current regulations (28 CFR 
543.13) state that all legal visits must be scheduled in advance. 
Although that provision may be reasonable for BOP facilities that do 
not have a pretrial mission, it is inconsistent with visitation 
policies and practices at 9 of BOP's 10 pretrial facilities and with 
attorney preferences. BOP, in consultation with ATJ, should revise 
this regulation to allow for walk-in visits at all pretrial 
facilities.\3\
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    \3\ Id. at 26.

    The current regulations governing attorney visits were promulgated 
on June 27, 1979,\4\ and have not been updated in 44 years. In the 
portion of the preamble addressing the addition of Sec.  543.13 those 
many years ago, the Bureau responded to some commenters and noted:
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    \4\ 44 FR 38254, 38263-64, available at https://www.govinfo.gov/content/pkg/FR-1979-06-29/pdf/FR-1979-06-29.pdf (p. 349 of the 
.pdf).

    Some objections were raised to the requirement in proposed Sec.  
540.46 that attorneys make advance appointments prior to visiting an 
inmate client, on the basis that attorneys, at least during regular 
visiting

[[Page 8331]]

hours, should not be subject to any more stringent regulations than 
other visitors. The provision for attorney visits, however, is 
necessary given the arrangements which often must be made to provide 
added privacy for attorney client consultation. This by no means 
prohibits attorneys from making regular visits without prior 
appointments under the same conditions as other visitors.\5\
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    \5\ Id. at 38264.

    The Bureau welcomes this opportunity to further clarify procedures 
governing how attorneys can arrange to visit their clients.

III. Discussion

    The Bureau agrees that an update to its attorney-visit regulations 
is needed to clarify current practices and the unique role of Bureau 
institutions with pretrial missions. Recognizing that the right to 
counsel safeguarded by the Sixth Amendment is critical for protecting 
fairness and accuracy in the criminal justice system, the Bureau 
embraces revisions to its attorney-visit regulations in order to expand 
access to this fundamental right. This interim final rule will 
encourage meaningful access to the right to counsel by amending the 
procedures whereby attorneys can request to visit their clients in 
pretrial detention within a Bureau institution. Accordingly, to give 
full effect to the Report's recommendation 2.1, the Bureau revises two 
paragraphs within Sec.  543.13.

Sec.  543.13(c)

    The current version of Sec.  543.13(c) provides that, to schedule 
any legal visit at any Bureau institution, an attorney must make an 
advance appointment for a visit through the warden, who in turn must 
make ``every effort'' to arrange for that visit when prior notification 
is not practical.\6\ Nothing in this paragraph distinguishes between 
Bureau institutions housing pretrial detainees and unsentenced 
individuals from Bureau institutions that house individuals who have 
been convicted. Therefore, the Bureau revises this paragraph to address 
pretrial detainees' and unsentenced individuals' right of access to 
counsel.
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    \6\ 28 CFR 543.13(c).
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    There are two substantive changes to this paragraph. First, we 
added introductory language to distinguish Bureau institutions that 
house convicted individuals from those that house pretrial detainees 
and unsentenced individuals. With this qualifying language, we affirm 
the current attorney-visit procedures used by Bureau institutions that 
house only convicted individuals. Attorneys seeking to visit clients at 
one of these Bureau institutions are still required to make an advance 
appointment to visit their client, and the warden of the institution is 
still required to make every effort to accommodate a last-minute visit 
when advance notice is not practicable (i.e., not possible). Second, we 
revised the last sentence to refer specifically to Bureau institutions 
that house pretrial detainees and unsentenced individuals, emphasizing 
that those institutions must allow both scheduled and unscheduled 
attorney visits during designated attorney visitation hours. Both 
changes effectively revise the regulation to allow for walk-in attorney 
visits at all Bureau institutions that house pretrial detainees and 
unsentenced individuals.

Sec.  543.13(e)

    In keeping with the theme and purpose of the Report, we have also 
decided to underscore the importance of attorney-client confidentiality 
during attorney visits by emphasizing that Bureau employees are 
prohibited from subjecting those visits to auditory supervision. To 
accomplish this, we deleted the permissive ``may'' and replaced it with 
the mandatory ``shall'' in the first sentence of the paragraph.

IV. Regulatory Certifications

Executive Orders 12866, 13563, and 14094 (Regulatory Review)

    The Department has determined that this rulemaking is not a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866, Regulatory Planning and Review. Accordingly, this interim final 
rule has not been submitted to the Office of Management and Budget 
(``OMB'') for review. This interim final rule has been drafted and 
reviewed in accordance with Executive Order 12866, ``Regulatory 
Planning and Review,'' section 1(b), Principles of Regulation; in 
accordance with Executive Order 13563, ``Improving Regulation and 
Regulatory Review,'' section 1(b), General Principles of Regulation, 
and in accordance with Executive Order 14094, ``Modernizing Regulatory 
Review''.
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of using the best 
available methods to quantify costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility.

Executive Order 13132--Federalism

    This interim final rule 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 interim final rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Executive Order 12988--Civil Justice Reform (Plain Language)

    This interim final rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 to specify 
provisions in clear language. Pursuant to section 3(b)(1)(I) of the 
Executive Order, nothing in this interim final rule or any previous 
rule (or in any administrative policy, directive, ruling, notice, 
guideline, guidance, or writing) directly relating to the Program that 
is the subject of this interim final rule is intended to create any 
legal or procedural rights enforceable against the United States.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    As set forth more fully above in the Supplementary Information 
portion, this interim final rule will not result in substantial direct 
increased costs to Indian Tribal governments.

Administrative Procedure Act, 5 U.S.C. 553

    This interim final rule is a rule of agency organization, 
procedure, and practice and is, therefore, exempt from the notice 
requirement of 5 U.S.C. 553(b), and is made immediately effective upon 
issuance. Further, to the extent this interim final rule affects 
entities other than the agency, the changes being made are merely 
technical in nature and impose no new restrictions. Accordingly, the 
Bureau of Prisons also finds good cause for exempting this interim 
final rule from the provision of the Administrative Procedure Act (5 
U.S.C. 553) requiring prior notice of proposed rulemaking, and delay in 
effective date. Nevertheless, the Bureau of Prisons is accepting post-
promulgation public comments.
    ``Unless a statutory exception applies, the APA requires agencies 
to publish a notice of proposed rulemaking in the

[[Page 8332]]

Federal Register before promulgating a rule that has legal force.'' 
Little Sisters of the Poor Sts. Peter & Paul Home v. Pennsylvania, 591 
U.S. ---, 140 S. Ct. 2367, 2384 (2020). The Administrative Procedure 
Act (5 U.S.C. 553(b)(3)(B)) allows exceptions to notice-and-comment 
rulemaking ``when the agency for good cause finds . . . that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.'' Further, 5 U.S.C. 553(d) provides an exception 
to the usual requirement of a delayed effective date for a substantive 
rule that relieves a restriction, or when the agency finds ``good 
cause'' that the rule be made immediately effective.
    An agency may find that notice and comment is ``unnecessary'' where 
the administrative rule is a routine determination, insignificant in 
nature and impact, and inconsequential to the industry and public. Mack 
Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012); Util. Solid 
Waste Activities Grp. v. EPA, 236 F.3d 749, 754-55 (D.C. Cir. 2001). 
Unlike previous Bureau interim final rules courts have addressed, this 
interim final rule is by its nature non-substantive, functioning only 
as updated guidance on attorney visits to Bureau institutions by 
specifically expanding access to counsel for pre-trial detainees in 
Bureau custody. Cf. Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) 
(holding the Bureau violated the APA by issuing an interim final rule 
that had ``the effect . . . [of] deny[ing] program eligibility to 
certain categories of inmates . . .).
    This rulemaking is exempt from normal notice-and-comment procedures 
because advance notice in this instance is unnecessary. The change to 
this regulation is non-substantive, minor, routine, insignificant, and 
made only to clarify procedures for attorney visits at Bureau 
institutions and to further promote inmates' right of access to 
counsel. This interim final rule makes no change to any rights or 
responsibilities of the agency or any regulated entities and, instead, 
seeks to promptly clarify procedures primarily for the benefit of 
current inmates and their attorneys who require access to them while 
they are housed at Bureau facilities designated for pretrial and 
presentenced detainees. For the same reasons, the Bureau finds that 
``good cause'' exists to make this interim final rule immediately 
effective upon publication. Nevertheless, the Bureau of Prisons is 
accepting post-promulgation public comments.

Unfunded Mandates Reform Act of 1995

    This interim final 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 (adjusted for 
inflation), 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.

Regulatory Flexibility Act

    The Director has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this interim final rule will not have a significant economic impact on 
a substantial number of small entities. Further, a regulatory 
flexibility analysis is not required when the agency is not required to 
publish a general notice of proposed rulemaking, as is the case here. 5 
U.S.C. 601(2), 604(a).

Congressional Review Act

    This regulation is not a major rule as defined by the Congressional 
Review Act, 5 U.S.C. 804.

List of Subjects in 28 CFR Part 543

    Prisoners, Legal activities.

    Accordingly, under rulemaking authority vested in the Attorney 
General in 5 U.S.C 301; 28 U.S.C. 509, 510 and delegated to the 
Director of the Bureau of Prisons in 28 CFR 0.96, the Bureau amends 28 
CFR part 543 as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 543--LEGAL MATTERS

0
1. The authority citation for part 543 continues to read as follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081 (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 1346(b), 2671-
80; 28 CFR 0.95-0.99, 0.172, 14.1-11.

Subpart B--Inmate Legal Activities

0
2. In Sec.  543.13, revise paragraph (c) and the first sentence of 
paragraph (e) to read as follows:


Sec.  543.13  Visits by attorneys.

* * * * *
    (c) For Bureau institutions that do not house pretrial detainees 
and unsentenced individuals, the attorney shall make an advance 
appointment for the visit through the Warden prior to each visit. 
However, the Warden shall make every effort to arrange for a visit when 
prior notification is not practicable. Bureau institutions that house 
pretrial detainees and unsentenced individuals will allow scheduled and 
unscheduled attorney visits during designated attorney visitation 
hours.
* * * * *
    (e) Staff shall not subject visits between an attorney and an 
inmate to auditory supervision. * * *
* * * * *

Colette S. Peters,
Director, Federal Bureau of Prisons.
[FR Doc. 2024-02470 Filed 2-6-24; 8:45 am]
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