03-5256. Visiting Regulations: Prior Relationship

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

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 [phone].

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, 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 § 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 [phone].

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 § 540.44 to read as follows:

§ 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 § 540.45 for qualification as special visitor. Staff are to compile a visiting list for each inmate after suitable investigation in accordance with § 540.51(b) of this part. The list may include:

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(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.

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3. Revise § 540.45 to read as follows:

§ 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 § 540.46 to read as follows:

§ 540.46

Attorney visits.

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

5. Revise § 540.47 to read as follows:

§ 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.

§ 540.48

[Removed and reserved]

6. Remove and reserve § 540.48.

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

§ 540.51

Procedures.

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(c) Verification of special visitor credentials. Staff must verify the qualifications of special visitors. Staff may request background information and official assignment documentation from the potential visitor for this purpose.

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