[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101882-101884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29681]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 543
[BOP-1175-F]
RIN 1120-AB75
Inmate Legal Activities: Visits by Attorneys
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (``Bureau'' or
``BOP'') finalizes revisions to regulations related to attorney-client
visits at BOP institutions.
DATES: Effective December 17, 2024, BOP adopts the interim final rule
published at 89 FR 8330 on Feb. 7, 2024, as final without change.
FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant
General Counsel/Rules Administrator, Federal Bureau of Prisons, at
(202) 353-4885.
SUPPLEMENTARY INFORMATION:
I. Background
On February 7, 2024, BOP published an interim final rule that
amended regulations related to attorney visits. 89 FR 8330 (Feb. 7,
2024). The comment period closed on April 8, 2024, and we received six
comments. Of those six comments, only two were related to the rule;
each of those comments is discussed more fully below. Of the four
unrelated comments, one noted generally that BOP should review its
regulations annually for improvement; one was mistakenly posted to this
docket instead of to the docket for another BOP rulemaking; another
laments the general treatment of January
[[Page 101883]]
6 defendants; and the last advocates for revised regulations regarding
clergy visits to BOP facilities. After consideration of the two
relevant public comments, BOP is adopting the interim final rule on
this subject without change.
II. Discussion
We received two relevant, substantive comments after publication of
the interim final rule. Each comment is addressed below.
Comment 1: The commenter states that the revised rule does not go
far enough to address other means that facilitate attorney-client
communications, emphasizing that the availability of private telephone
calls is essential to facilitate attorney-client communications. The
commenter gave several examples where inmates and their attorneys
encountered difficulties obtaining approval from officials at BOP
institutions for unmonitored telephone calls. However, the commenter
did not address the specific changes to the regulation addressing in-
person visits by attorneys.
Response: BOP agrees that meaningful access to counsel includes
reasonable access to unmonitored telephone calls to facilitate
attorney-client communications. Through separate procedures, BOP
enables confidential communications between an inmate and their
attorney through legal visits, unmonitored telephone calls, and
unmonitored legal correspondence. Title 28 CFR 540.102 and 540.103
address unmonitored telephone calls, while 28 CFR 540.18 and 540.19
address unmonitored legal correspondence.
However, the comment is out of scope as the interim final rule only
addressed the procedures for in-person, confidential attorney visits as
provided in Part 543, and did not address the different issue of rules
applicable to telephone calls between inmates and their attorneys,
which are in separate regulations at 28 CFR 540.102-540.103. To the
extent the commenter's suggestion is intended to be construed as a
petition for rulemaking pursuant to 5 U.S.C. 553(e), a comment to a
rule pertaining to a different issue in a different set of regulations
is not the proper mechanism to effectuate that provision. Individuals
in BOP custody with individualized concerns or questions regarding the
implementation of applicable regulations or policy are reminded of
their rights to address such issues through the agency's Administrative
Remedy Program, as outlined at 28 CFR part 542 and in BOP Program
Statement 1330.18 (available at www.bop.gov/policy). Thus, BOP
concludes that no changes are needed in the final rule in light of this
comment.
Comment 2: The commenter states that the rule should address
attorney visits for individuals located at administrative facilities in
holdover status; that the rule does not address circumstances where a
pretrial or unsentenced individual is in holdover status at a BOP
institution that houses convicted individuals; that BOP's explanation
for the rule indicates that attorneys can visit a client in BOP custody
like social visitors during normal visiting hours without advanced
notice; that many attorneys are unwilling to be added to their client's
regular social visiting list and that some attorneys are unwilling to
provide personally identifying information on the social visit
application forms; and that BOP should clarify if attorneys can show up
at an institution during normal social visiting hours for a visit in
the common area (i.e., not in a private setting) without providing
sensitive personal information.
Response: As background, BOP is responsible for the custody and
care of sentenced federal inmates, felony offenders convicted and
sentenced to a term of imprisonment under the DC criminal code a number
of state and military offenders who are housed on a contractual basis,
and pretrial detainees and pre-sentenced offenders housed in BOP
facilities on behalf of the United States Marshals Service (USMS).
The USMS is responsible for the care and custody of individuals
charged with a federal offense. Responsible for housing approximately
63,000 detainees, the USMS acquires detention bedspace through
agreements with state and local governments in addition to available
BOP pretrial cells. Approximately 75 percent of the detainees in the
custody of the USMS are detained in state, local, and private
facilities; the remainder are housed in BOP facilities. Ordinarily,
pretrial inmates in BOP custody are housed in administrative
institutions including Metropolitan Detention Centers (MDCs), Federal
Detention Centers (FDCs), and Metropolitan Correctional Centers (MCCs).
These institutions may also house convicted inmates awaiting sentencing
or movement to designated institutions, or sentenced inmates who
require further court appearances. A small number of other BOP
institutions also house pretrial inmates in specific units within the
main facility or in jail units located in satellite buildings separate
from the main facility.
As explained in the preamble to the interim final rule, the prior
version of Sec. 543.13(c) provided that, to schedule any legal visit
at any BOP institution, an attorney must make an advance appointment
for a visit through the warden, and that the warden must make every
effort to accommodate a legal visit when prior notification is not
practicable. That prior rule was promulgated on June 27, 1979.
To clarify, the interim final rule updated Sec. 543.13(c) to allow
both scheduled and unscheduled attorney visits during designated
attorney visitation hours at BOP institutions whose mission is to house
pretrial detainees and unsentenced individuals. However, the rule
retains the requirement that attorneys seeking to visit clients at BOP
institutions whose mission is to house convicted individuals must make
an advance appointment for a legal visit and that the warden must make
every effort to accommodate a legal visit when prior notification is
not practicable.
Attorney visits for holdover inmates. The term ``holdover'' refers
to individuals in BOP custody who are transferring from one BOP
institution to another. These individuals are categorized as being in
holdover status until they arrive at the institution to which they are
officially designated. The interim final rule did nothing more than
allow both scheduled and unscheduled attorney visits during designated
attorney visitation hours at BOP institutions that have a pretrial
mission housing pretrial and unsentenced individuals, and it retains
the requirement for an advanced appointment for attorney visits at all
other BOP institutions. Accordingly, attorney visits with any
individual in holdover status housed at an institution that does not
have a pretrial mission must ordinarily make an advance appointment for
a legal visit. Individuals in holdover status and their attorneys may
coordinate legal visits in the same manner as the offender population
at the particular facility in which the individual is temporarily
housed en route to their designated institution. To clarify, it is the
type of institution and its specific mission that are determinative for
purposes of scheduling attorney visits; an individual's temporary
status as a ``holdover'' is not determinative. Further changes to the
rule addressing attorney visits for pretrial and unsentenced
individuals on holdover status are unnecessary.
Adding attorneys to client's social visiting list. The commenter
urges that this rule address the option for attorneys to be added to
their client's social visiting list, but that subject is addressed by
separate rules applicable
[[Page 101884]]
to regular visitors at 28 CFR part 540, subpart D. In coordination with
their client, attorneys may seek to be added to their client's regular
social visiting list and visit under the same conditions as other
visitors in accordance with part 540, subpart D.
Again, this comment is out of scope of what was addressed in the
interim final rule. Such social visits are conducted in an open
setting, not a confidential setting for attorneys to meet with their
clients privately. By contrast, confidential attorney visits, which are
the subject of this rule, are governed by part 543. To the extent the
commenter's suggestion is intended to be construed as a petition for
rulemaking pursuant to 5 U.S.C. 553(e), a comment to a rule pertaining
to a different issue in a different set of regulations is not the
proper mechanism to present such a petition. Thus, the BOP concludes
that no changes are needed in the final rule in light of this comment.
The commenter also urges that the rule clarify whether attorneys
are required to submit the same personal information as other visitors
to be added to the inmate's approved social visitor list. As noted,
attorneys may seek to be added to their client's regular social
visiting list and visit under the same conditions as other visitors
pursuant to separate rules applicable to regular visitors at 28 CFR
part 540, subpart D, and the more granular details regarding the
processing of social visits are addressed in the BOP policy
implementing those provisions. The BOP declines to make changes to Part
543 in response to this comment.
For the foregoing reasons, we conclude that no changes are needed
in the regulatory language in Sec. 543.13(c) and (e) as adopted in the
interim final rule, and that no other changes are needed in BOP's
regulations in connection with this specific rulemaking action.
Accordingly, this rule finalizes the interim final rule without change.
IV. Regulatory Certifications
Executive Orders 12866, 13563 and 14094. This rule does not fall
within a category of actions that the Office of Management and Budget
(OMB) has determined constitutes a ``significant regulatory action''
under section 3(f) of Executive Order 12866 and, accordingly, it was
not reviewed by OMB. The economic impact of this final rule is limited
to inmates in the custody of the Bureau of Prisons and their attorneys.
Executive Order 13132. This rule will not have substantial direct
effect 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,
under Executive Order 13132, BOP determines that this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Executive Order 12988--Civil Justice Reform (Plain Language). This
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 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 final rule is intended to create any legal or procedural rights
enforceable against the United States.
Regulatory Flexibility Act. The Director of the Bureau of Prisons,
under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this
rule and by approving it certifies that it 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 and detainees committed to the custody of the Attorney
General or the Director of the Bureau of Prisons, and its economic
impact is limited to BOP'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 (as
adjusted for inflation) 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.
Congressional Review Act. This rule is a not 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.
PART 543--LEGAL MATTERS
0
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, BOP adopts the interim final rule on
this subject, published at 89 FR 8330 on Feb. 7, 2024, as a final rule,
without change.
Colette S. Peters,
Director, Federal Bureau of Prisons.
[FR Doc. 2024-29681 Filed 12-16-24; 8:45 am]
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