Visiting Regulations: Prior Relationship

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[BOP-1082-P]

RIN 1120-AA77

Visiting Regulations: Prior Relationship

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed Rule.

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SUMMARY: In this document the Bureau of Prisons is proposing to revise

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 is currently applicable 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, the Bureau is also clarifying in its regulations the

distinction between regular and special visitors.

DATES: Comments due by July 19, 1999.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons,

HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is proposing to amend

its regulations on visiting (28 CFR part 540, subpart D). A final rule

on this subject was published in the Federal Register on June 30, 1980

(45 FR 44232), and was amended on July 18, 1986 (51 FR 26127), February

1, 1991 (56 FR 4159), and July 21, 1993 (58 FR 39095).

The Bureau of Prisons encourages visiting by family, friends, and

community groups to maintain the morale of the inmate and to develop

closer relationships between the inmate and family members or others in

the community. Currently, Bureau of Prisons regulations provide that

for Medium Security Level, High Security Level, and Administrative

institutions, regular visiting privileges are extended to friends and

associates having an established relationship with the inmate prior to

confinement. This requirement for a prior established relationship does

not currently extend to inmates confined in Minimum Security Level and

Low Security Level institutions.

As part of a general review of security measures at Bureau

institutions, the Bureau is proposing to require that the regular

visiting privilege shall ordinarily be extended to friends and

associates having a prior established relationship with the inmate at

all Bureau institutions, including Minimum Security Level and Low

Security Level institutions.

Exceptions to the prior relationship rule may continue to be made,

particularly for inmates without other visitors, provided the proposed

visitor is reliable and poses no threat to the security or the good

order of the institutions.

By restricting visits from people who have no prior established

relationship with inmates, the Bureau is also ensuring that inmates who

do have established prior relationships with their visitors will have

reasonable and equitable access to visiting.

The requirement for the prior relationship is not intended to

affect visiting for special purposes. In order to emphasize the

Bureau's intentions in this regard, the Bureau is amending the

introductory text governing regular visitors (Sec. 540.44) to include a

cross reference to the requirements for special visitors. Existing

provisions in Secs. 540.45 through 540.48 pertaining to business

visits, consular visits, visits from representatives of the community,

and special visits have been reorganized and revised in a new

Sec. 540.45 entitled ``Qualification as special visitor,'' with cross-

references to attorney and media visits in new Secs. 540.46 and 540.47.

As a consequence of making the distinction between regular visitors and

special visitors more clear, the Bureau is also amending the section on

procedures (Sec. 540.51) to note that necessary background

investigations for special visitors are processed differently from

background investigations for regular visitors.

Interested persons may participate in this proposed rulemaking by

submitting data, views, or arguments in writing to the Rules Unit,

Office of General Counsel, Bureau of Prisons, 320 First Street, NW.,

HOLC Room 754, Washington, DC 20534. Comments received during the

comment period will be considered before final action is taken.

Comments received after the expiration of the comment period will be

considered to the extent practicable. All comments received remain on

file for public inspection at the above address. The proposed rule may

be changed in light of the comments received. No oral hearings are

contemplated.

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 12612

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 12612, 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 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

[[Page 27167]]

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 Roy Nanovic at the address

listed above.

List of Subjects in 28 CFR Part 540

Prisoners.

Kathleen Hawk Sawyer,

Director, Bureau of Prisons.

Accordingly, pursuant to the rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and delegated to the Director,

Bureau of Prisons in 28 CFR 0.96(p), part 540 in subchapter C of 28

CFR, chapter V, is proposed to be amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 540--CONTACT WITH PERSONS IN THE COMMUNITY

1. The authority citation for 28 CFR part 540 continues 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; 28 CFR 0.95-0.99.

2. In Sec. 540.44, the section heading, the introductory text and

paragraph (c) are revised 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). The list may include:

* * * * *

(c) Friends and associates. The visiting privilege ordinarily will

be extended to friends and associates having an established

relationship 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. Section 540.45 is revised 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. Section 540.46 is revised to read as follows:

Sec. 540.46 Attorney visits.

Requirements for attorney visits are governed by the provisions on

inmate legal activities (see Secs. 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. Section 540.47 is revised 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. Section 540.48 is removed and reserved.

7. In Sec. 540.51, paragraphs (c) through (g) are redesignated as

paragraphs (d) through (h), and a new paragraph (c) is added 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 from the potential

visitor for this purpose.

* * * * *

[FR Doc. 99-12501 Filed 5-17-99; 8:45 am]

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