Rule2024-02470
Inmate Legal Activities: Visits by Attorneys
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 7, 2024
Effective
February 7, 2024
Issuing agencies
Justice DepartmentPrisons Bureau
Abstract
The Bureau of Prisons (Bureau) amends regulations in 28 CFR part 543, subpart B--Inmate Legal Activities to revise procedures governing attorney visits.
Full Text
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<title>Federal Register, Volume 89 Issue 26 (Wednesday, February 7, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments. The electronic Federal
Docket Management System at <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>. 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
<a href="http://www.regulations.gov">www.regulations.gov</a>.
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 <a href="https://www.justice.gov/d9/2023-07/2023.07.20_atj_bop_access_to_counsel_report.pdf">https://www.justice.gov/d9/2023-07/2023.07.20_atj_bop_access_to_counsel_report.pdf</a>.
\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 <a href="https://www.govinfo.gov/content/pkg/FR-1979-06-29/pdf/FR-1979-06-29.pdf">https://www.govinfo.gov/content/pkg/FR-1979-06-29/pdf/FR-1979-06-29.pdf</a> (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]
BILLING CODE 4410-05-P
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</html>Indexed from Federal Register on February 7, 2024.
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