[Federal Register Volume 59, Number 64 (Monday, April 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8008]
[[Page Unknown]]
[Federal Register: April 4, 1994]
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Part III
Department of
Justice
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Bureau of Prisons
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28 CFR Parts 540 and 545
Telephone Regulations and Inmate Financial Responsibility; Final Rule
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Parts 540 and 545
[BOP-1004-F]
RIN 1120-AA06
Telephone Regulations and Inmate Financial Responsibility
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (``Bureau'') is
amending its rule on Telephone Regulations in order to provide for the
operation of the Inmate Telephone System (``ITS'') and to clarify
references to loss of telephone privileges under institutional
disciplinary sanctions. This document also amends the Bureau's rule on
the Inmate Financial Responsibility Program as it relates to telephone
privileges.
These amendments are intended to further the Bureau's core value of
sound correctional management both by recognizing the role of inmate
financial responsibility and by further minimizing the security
problems and criminal activity associated with inmate telephone use,
thereby improving the safe and secure operation of Bureau institutions.
Consistent with correctional management objectives, these amendments
are also intended to reduce generally the costs of telephone calls by
providing for a direct-dial, debit-billing system now available through
technological developments in the telephone and computer industries.
This system allows the Bureau to more effectively carry out its long-
standing rule that an inmate is responsible for the expenses of inmate
telephone use. These amendments also give the Bureau more flexibility
to efficiently manage inmate telephone use, thus enhancing the Bureau's
ability to provide telephone access to inmates in a manner that
facilitates other correctional management goals, such as encouraging
inmates to be financially responsible. Finally, these amendments enable
the Bureau to restrict and more effectively monitor inmate telephone
use that may pose a threat to the security of the institution or the
public.
EFFECTIVE DATE: May 4, 1994, except for Secs. 540.105(c) and
545.11(d)(10) which become effective January 3, 1995.
ADDRESSES: 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, telephone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its rules
on Telephone Regulations and on the Inmate Financial Responsibility
Program. A proposed rule on these subjects was published in the Federal
Register July 21, 1993 (58 FR 39096). A summary of background
information, public comment, and agency response follows.
Background/History of Inmate Telephone Privileges
The Bureau of Prisons (``Bureau'') provides inmates with several
means of communicating with the public. Primary among these is written
correspondence, with visiting and telephone privileges serving as two
supplemental means of communication. Although there is no
Constitutional right for inmates to have unrestricted telephone
communication with members of their families and the community,
particularly when there are alternative channels of communication
available, the Bureau provides inmates with telephone access consistent
with the requirements of sound correctional management for the
continually expanding inmate population.
Prior to the early 1970's, telephone privileges in Bureau
institutions were determined by local policy, as set by each Warden. In
1973, the Bureau adopted a national policy to ensure telephone access
to all inmates by permitting every inmate who was not restricted from
telephone use to make at least one telephone call every quarter. During
the mid-1970's, telephone privileges routinely consisted of one or two
short telephone calls a month on institution telephones, placed and
supervised by staff, and approved in advance.
In the late 1970's, the Bureau attempted to increase telephone
access and reduce staff assistance by the installation of a collect
call system which relied upon inmate use of unattended commercial
equipment, tape recording, and operator-assisted services. This was the
system in operation when the Bureau published its final rule on
Telephone Regulations June 29, 1979 (44 FR 38249), with a subsequent
amendment June 1, 1983 (48 FR 24622).
Purpose of the Amended Regulations
The former regulations, as cited above and as codified in 28 CFR
part 540, subpart I, state that the inmate is responsible for the
expenses of inmate telephone use. This has been, and remains, a major
tenet of Bureau policy. However, at the time the former regulations
were published, the Bureau had no practicable means of making inmates
directly responsible for the costs of their calls. Hence, those
regulations recognized that inmate telephone calls would ordinarily be
made collect to the party called.
Technological developments in the telephone and computer industries
have now made it possible for the Bureau to install a debit-billing
telephone system which allows the Bureau to more effectively carry out
its rule that an inmate is responsible for the expenses of inmate
telephone use. This system, known as the Inmate Telephone System (ITS),
is similar to telephone systems used in many hotels where calls are
direct-dialed after being processed through a switch and charged to the
caller's bill.
These amended telephone regulations provide for the operation of
the ITS and permit the Bureau to better address correctional management
and security problems than with the collect call telephone system in
place under the former regulations. These regulations therefore provide
an important contribution to the goals of responsible correctional
management in the following ways:
1. The amended regulations are intended to help teach inmates
responsibility and management of resources. The former collect call
system provides little or no incentive for inmates to shoulder personal
responsibility for the costs of their telephone calls, as collect call
billing shifts the costs to other parties. This excuses inmates from
exercising a basic form of decision-making on how to spend their funds,
a decision that must be made every day by other adults. The Bureau
believes that encouraging inmates to face practical life-style choices
is an integral part of the rehabilitation process. In recognizing the
importance of developing this skill, the Bureau provides education
programming for life-coping skills such as budgeting. This is
consistent with the Bureau's statutory mandate, as set forth in 18
U.S.C. 4001 and 4042, to provide for inmates' ``government, discipline,
treatment, care, rehabilitation, and reformation.''
By providing for the operation of a debit-billing system in which
inmates are responsible for the cost of their telephone calls (unless
there is good cause for the placement of a collect call or a compelling
circumstance justifies the placement of a call at government expense),
the amended regulations help the Bureau to meet its statutory mandate.
In order to exercise their telephone privileges, inmates will have to
establish their priorities, purchase telephone credits at the prison
commissary, and manage the expenditure of their telephone credits.
Moreover, by taking responsibility for the costs of their telephone
calls and managing their telephone credits, inmates gain an increased
sense of control over their lives.
The switch from the former collect system to the debit billing ITS
also provides an added incentive for inmates to obtain the higher-
skilled and higher-paying prison work assignments. Through such work,
inmates can develop occupational skills and the discipline of working
on a regular basis, factors which contribute to an inmate's successful
return to society. In recognition of this fact, the United States
Congress has mandated work assignments for all inmates, except as
necessitated by security considerations, disciplinary action, medical
reasons, or other programming involvement. See 18 U.S.C. 4121; Public
Law 101-647, 104 Stat. 4914. By providing an incentive to work to
obtain money for telephone calls, the amended regulations and the ITS
debit-billing system encourage the fulfillment of this Congressional
objective.
2. The amended regulations are intended to increase the incentive
for inmates to participate in the Inmate Financial Responsibility
Program (IFRP), a program that encourages inmates to set and meet
regular payment schedules, consistent with their resources, for their
court-imposed fines, restitutions, and other financial obligations. The
program stresses the importance of fiscal responsibility. See 28 CFR
part 545 subpart B. The Bureau considers the inmate's efforts to
fulfill financial obligations as indicative of the inmate's acceptance,
and demonstrated level, of responsibility. This is one factor in
determining an inmate's readiness to return to society.
Participation in the IFRP is voluntary, but inmates who refuse to
participate are restricted in their commissary spending, not eligible
to receive a furlough or consideration for community placement, and not
permitted to work in Federal Prison Industries. These amended
regulations add another restriction to this list: 28 CFR
Sec. 545.11(d)(10) provides that inmates who refuse to participate in
the IFRP are allowed to place no more than one telephone call every
month, at the inmate's expense, absent authorization from the Warden
for additional inmate-paid calls based upon compelling circumstances.
Inmates who refuse to participate in the IFRP retain the same access as
other inmates to unmonitored attorney calls arranged by unit staff. See
re-designated 28 CFR 540.102 and 103, formerly Secs. 540.101 and 102.
The Bureau's policy of offering inmates the choice of participating
in the IFRP, with its clearly stated consequences, has been an
effective means of helping inmates fulfill their legitimate financial
obligations. Since its full implementation in 1987, through February,
1994, the IFRP has resulted in the collection of approximately
$81,000,000.00 toward payment of inmate fines, debts, and restitution
to victims.
The Bureau notes that the IFRP, by assisting in the collection of
fines and legal debts, helps to accomplish not only a major priority
for the Department of Justice, but has also been upheld as serving the
valid penological objective of rehabilitation by facilitating repayment
of debts. See Johnpoll v. Thornburgh, 898 F.2d 849 (2d Cir., 1990),
cert. denied, 498 U.S. 819; James v. Quinlan, 866 F.2d 627, 630 (3rd
Cir., 1989), cert. denied, 493 U.S. 870). By limiting the telephone
privileges of inmates who refuse to participate in the IFRP, the Bureau
is providing an additional incentive for inmates to pay their debts to
society and is managing telephone privileges in a manner consistent
with other privileges conditioned upon voluntary participation in the
IFRP.
3. The amended regulations are designed to contribute to the safety
and security of Bureau institutions by providing more equitable
telephone access to the rapidly expanding inmate population. The Bureau
of Prisons is faced with an unprecedented increase in population,
leading to a substantial overcrowding of Bureau institutions and a
considerable strain on already limited resources. On February 10, 1994,
the Bureau had 82,426 inmates confined in 73 institutions. These
institutions have a total rated capacity of approximately 60,571
inmates.
By explicitly authorizing the Warden to limit the maximum length of
inmate telephone calls based on institution conditions, such as
institution population or usage demand, the amended regulations
increase the Bureau's ability to manage this large population by
providing greater and more equitable telephone access to inmates. Under
the former collect call system, it is very difficult for staff to
enforce any time limits on inmate telephone calls. Some inmates are
thus able to monopolize telephone use, increasing tensions in an
overcrowded inmate population. The ITS, in contrast, can be programmed
to terminate a call automatically after the expiration of a certain
period of time, ordinarily 15 minutes, so that the telephone will be
available for use by another inmate.
In addition, it is reasonable to expect that debit-billing will
affect the ability of some inmates to continue monopolizing the
telephone. By having to pay for their calls directly, these inmates may
be unable, or unwilling, to expend the funds to monopolize the
telephone.
The amended regulations also help Bureau staff to more effectively
prevent telephone use by those inmates who have abused their telephone
privileges. Under the former system, if an inmate had abused his or her
telephone privilege, for example, by using a telephone to engage in
criminal activity, and had then undergone an administrative hearing
affording limited due process, a Discipline Hearing Officer could
restrict the inmate's use of the telephone for a given period of time.
However, there was no effective way to enforce that sanction. The
Bureau was forced to rely upon staff to observe the inmate using the
telephone after the restriction had been imposed. Given the fact that
the Bureau incarcerates as many as 2,000 inmates in one institution,
and that inmate telephones may be in various locations within the
institution, limited staff resources make it very difficult to conduct
continuous surveillance of specific inmates with restricted telephone
privileges. With the ITS, the Bureau can mechanically block the
telephone calls of those inmates on telephone restriction.
4. The amended regulations better assist Bureau staff in detecting
and preventing criminal activity facilitated through use of the
telephone. The former collect call system is more easily used by
inmates to direct criminal activity from prison, such as committing
fraud, facilitating drug operations, intimidating witnesses, and
managing the fruits of their crimes. Cases have been developed over the
years which involve attempts by inmates to defraud members of the
public and, in some cases, financial corporations. Examples include
credit card fraud, securities fraud, and various forms of insurance and
tax fraud.
This problem is not unique to the Bureau. In 1989, the telephone
industry estimated an annual loss of $150 million from institutional
toll fraud, including that which occurs in prisons. Officials from
Consolidated Communications, Inc., a long-distance carrier for 25
correctional facilities in Illinois, were quoted by United Press
International on July 5, 1993, as stating ``[f]raud is rampant because
inmates have found ways to outfox the system that makes them reverse
charges on long-distance calls made from prison phones. Bills for up to
20 percent of the long-distance calls are uncollectable.'' The Bureau
notes that these losses have prompted the telephone companies and
several state and local correctional systems to look at ways to solve
the problems associated with the collect call system.
By restricting the inmates' access to collect telephone service,
the amended regulations should help substantially reduce the
possibility that inmates will be able to reverse the charges or have
their calls billed to a person who has no intention of paying the
charges. In addition, the ITS provides increased assistance in the
investigation of criminal activity, such as escape plots or plans to
introduce contraband into prison.
The amended regulations also enable the Bureau to prevent an inmate
or group of inmates from calling a specific telephone number. By doing
so, the Bureau can better protect a victim, witness, or other member of
the public from harassment, and can better prevent calls that pose a
threat to institution security and good order or to the public. The
ability to block recipient numbers also helps the Bureau prevent one
inmate from calling another inmate's family, a method of intimidation
or extortion between inmates. This capability is not available under
the former collect call system.
In addition, by ordinarily restricting inmate calls to parties
identified on the inmate's official telephone list (28 CFR 540.101(a)),
the amended regulations should help reduce the possibility that inmates
will use the telephone to engage in criminal activity or to harass
people who do not want to receive their calls.
5. The amended regulations and direct-dial telephone service also
provide inmates with several advantages over the former collect call
system. Among these advantages are the following:
a. The amended regulations should facilitate more equitable access
of the telephones for all inmates, by permitting the Warden to limit
the maximum length of inmate telephone calls based upon institution
conditions, such as institution population or usage demand. The ITS,
which can be programmed to terminate a telephone call automatically
after the expiration of a certain period of time, and which permits
debit-billing from the inmates' trust fund accounts, should help reduce
an inmate's ability to monopolize telephones, thereby helping to ensure
more equitable telephone access for all inmates.
b. Inmates may place direct-dialed international calls. This is a
particular benefit to the large percentage of the Bureau inmate
population (over twenty-five percent in June 1993) who are non-United
States citizens with families in other countries. Many of these inmates
had difficulty communicating by telephone with their families because
telephone carriers do not always process international collect calls.
Some of the inmate commenters acknowledged this problem by stating that
their home countries did not accept collect calls.
c. Inmates may place direct-dialed calls to persons who cannot
accept collect calls because, for example, their home telephones have
been restricted by their telephone service company from receiving
collect calls, or their workplaces do not accept collect calls.
Similarly, inmates may call offices, such as their children's schools,
which may not accept collect calls.
d. Unlike operator-assisted collect calls, inmates making direct-
dialed calls have a greater opportunity to leave a message with the
person who answers the telephone or, in some cases, on the answering
machine of the person called. One of the inmate commenters acknowledged
this by listing several examples of instances where he may not be able
to make contacts through the collect call system.
e. The amended regulations will help assist staff in contacting
inmates' families in emergency situations. Because many inmates are
serving long sentences, the telephone numbers and addresses given upon
initial incarceration may no longer be valid. As a result, staff have
had difficulty locating next of kin for seriously ill inmates, or in
other emergency situations. The inmate telephone lists required by the
amended regulations will provide staff with a list of up-to-date
telephone numbers for each inmate.
The amended regulations help satisfy the above-listed correctional
management objectives, which are consistent with the statutory
responsibility of the Attorney General, as set forth in 18 U.S.C. 4001
and 4042, and delegated to the Director of the Bureau of Prisons in 28
CFR 0.96. Paragraph (p) of Section 0.96 empowers the Director to
promulgate rules governing the control and management of Federal penal
and correctional institutions and providing for the classification,
government, discipline, treatment, care, rehabilitation, and
reformation of inmates confined within those facilities.
Response to Public Comments
Comments on the proposed rule were received from inmates, members
of the general public, and other interested parties. The majority of
inmate comments consisted of form letters from one institution. A
summary of the comments and response to these follow.
1. Use of Commissary Trust Fund
A commenter disagreed with the proposed rule, suggesting that the
Bureau of Prisons is not expending the Commissary Trust Fund profits in
accordance with the terms of the trust, pursuant to 31 U.S.C. 1321(b)
(1993). This commenter expressed a belief that all federal inmates are
the beneficiaries of the trust and any expenditure must benefit the
inmate population ``as a whole.'' In this commenter's view, the ITS
does not benefit all inmates and, thus, is not a proper expenditure
from the trust.
The Bureau disagrees with this comment. The Commissary Trust Fund,
and the commissary system that it finances, were established to further
the Bureau's security and correctional management goals by permitting
inmates to purchase goods and services not regularly provided by the
Bureau. To encourage inmate financial responsibility and to further the
Bureau's other correctional management and security concerns discussed
above, it is appropriate to charge inmates for the costs of their
telephone calls. In addition, inmates have no entitlement to a
telephone system provided at government expense. It is, therefore,
appropriate to charge inmates for the costs of their telephone calls,
to deposit the revenue from the inmate telephone calls into the
Commissary Trust Fund, and to use Commissary Trust Fund revenues to pay
for the expenses of the ITS telephone system.
The operation of the ITS through the Commissary Trust Fund will
also benefit the inmate body as a whole because the ITS telephone
rates, like the prices for other goods and services sold in Bureau
commissaries, are designed to cover the cost of providing the service
and to leave a profit in the Commissary Trust Fund. Thus, after the ITS
is fully operational and start-up expenses have been recouped, the ITS
is expected to increase the amount of Commissary Trust Fund money
available for the procurement of books, recreational equipment, or
other items that benefit the inmate population as a whole.
Furthermore, the trust documents establishing the Commissary Trust
Fund, Department of Justice Circular 2126 (1930) and Department of
Justice Circular 2244 (1932), give the Director of the Bureau of
Prisons the sole discretionary authority to determine which items will
be sold through institution commissaries and how, if at all, any
Commissary Trust Fund profits will be disbursed. Both trust documents
also authorize the Bureau to restrict inmates' commissary privileges to
further penological goals and state that inmates are not entitled to
any profits derived from the operation of institution commissaries.
Thus, while the Commissary Trust Fund benefits the inmate population
``as a whole,'' inmates are not legal ``beneficiaries'' of the trust
and have no right to control Commissary Trust Fund expenditures. For
the reasons stated in the section entitled ``PURPOSE OF THE AMENDED
REGULATIONS,'' the Bureau has determined that the ITS benefits both the
inmate population and the public, such as protecting the public from
inmate telephone abuse, and furthers the Bureau's correctional goals.
It is appropriate, therefore, to pay the ITS expenses from the
Commissary Trust Fund.
The same commenter also contended that because the ITS program has
enhanced security features, it should be paid for by using other
appropriations. The commenter referenced 18 U.S.C. 4007, which calls
for expenses attendant to the confinement of prisoners to be paid out
of the Treasury of the United States.
In response, the Bureau first notes that security equipment and
supplies used to record telephone calls are not funded by Commissary
Trust Fund revenues. Rather, funds for this equipment and these
supplies will continue to be allocated from other appropriated Bureau
funds.
As for the other security features, the Bureau believes that one of
its primary objectives is to ensure the security and good order of
Bureau institutions, thereby benefitting both the inmate population as
a whole and the public. It is not inappropriate to expend Commissary
Trust Fund profits on the ITS merely because the system assists in
achieving this goal.
Finally, with respect to the provisions of 18 U.S.C. 4007, the
Bureau notes that Congress recently passed legislation which provides
for inmates to pay for the costs of the first year of their
incarceration, if they can afford to do so. See 18 U.S.C. 4001; Section
111 of Public Law 102-395 (106 stat. 1842). Thus, the Bureau does not
read 18 U.S.C. 4007 as precluding the sale of goods and services in
institution commissaries or charging the inmates with other fees
authorized by law.
2. Replacement of Collect Call System
Many commenters requested the retention of inmate collect call on
demand privileges. These commenters recommended that the direct-dial
system be added to, rather than replace, the collect call system, so
that what the commenters refer to as a ``dual system'' could operate.
The ``dual system'' would continue the collect call on demand
capability of the former collect call system. The Bureau responds as
follows:
a. As an initial matter, the Bureau notes that these comments may
be based upon a belief that, with the installation of the ITS, inmates
would no longer be allowed to make collect calls. However, the amended
regulations allow for limited collect calling.
In the proposed rule, the Bureau recognized that there is a need
for inmates to be able to make collect calls in specific instances,
such as emergencies, or for holdovers or pre-trial inmates. Section
540.101(d) of the proposed rule specifically addresses this issue. As
expanded in the final rule, this section, now Sec. 540.101(e), provides
for a more comprehensive listing of those persons who have a need to
make collect calls, such as new arrivals, including new commitments and
transfers, and inmates without funds. Similarly, final Sec. 540.105(b)
specifically provides for collect calls to be available for inmates
without funds. See further discussion below, in the section entitled
``7. COSTS. . . d. Inmates without funds.''
b. Several inmate commenters complained that their low institution
earnings and need to purchase personal hygiene items would prevent them
from making as many direct-dialed telephone calls as they could make
with the collect call system. While it is true that inmates do not earn
regular scale wages, neither do they have regular living expenses, such
as housing, clothing, food, medical and dental. In addition, the
Bureau's existing policy on grooming, codified at 28 CFR part 551,
subpart A, provides for the Warden to make available to inmates those
articles necessary for maintaining personal hygiene. The Bureau's
internal implementing language to that provision provides that the
basic hygiene items to be made available to inmates include soap,
toothbrushes, toothpaste or powder, combs, shaving supplies, and
feminine hygiene products. Inmate complaints regarding provision of
these basic items should be addressed through the Administrative Remedy
Program. See 28 CFR part 542.
The average inmate has ample discretionary funds to purchase items
of a personal interest, such as additional hygiene and cosmetic items,
and direct-dialed telephone calls. As of October 1993, the monthly
inmate trust fund account balance averaged $115.78 per inmate. Through
June 1993, the annual commissary purchases made by inmates averaged
$1,046.87 per inmate. At the institution where the majority of inmate
comments on this rule originated, the annual commissary purchases
averaged $1,254.09 per inmate and the average monthly inmate trust fund
account balance was $101.95 per inmate.
Moreover, the amended regulations encourage the inmates to
establish spending priorities and to choose between such items as
telephone calls, cigarettes, candy, and special hygiene products, thus
furthering the correctional goal of assistng inmates to be financially
responsible. The average citizen who must live within a budget must
make similar spending choices, and may not be able to pay for any more
long-distance calls than the two to three calls a month that one inmate
commenter complained was only possible within his budget.
For these reasons, we do not agree with comments implying that it
is wrong to require inmates to make choices on how to spend their
funds. However, the Bureau believes that it is necessary to address
telephone access for inmates without sufficient funds. The Bureau's
accommodations on that point are noted below in the section entitled
``7. COSTS. . .d. Inmates without funds.''
c. Some inmate commenters stated that the proposed regulations
would force them to beg for telephone money from the people they want
to call. The Bureau believes that such characterization also applies to
the solicitation to accept a collect call. As one inmate commenter
stated, ``[i]t is belittling for me to have to call anyone collect.''
Although this commenter advocated the installation of ``regular pay
telephones,'' he preferred to place direct-dialed calls that he could
pay for, rather than his family, because his family had experienced
serious difficulties due to the large telephone bills from collect
calls.
d. Some commenters requested the retention of the collect call
system so that they can pay for an inmate's telephone calls. Commenters
stated, in a form letter, that ``[t]he new telephone system would force
me to send money to ensure that loved ones could call, but would offer
no means of controlling if calls were made [to] me or the money was
spent otherwise.''
Under the amended regulations, people who would accept an inmate's
collect calls may send the inmate money to defray the cost of the
direct-dialed calls. As discussed in the section entitled ``PURPOSE OF
THE AMENDED REGULATIONS,'' this will provide the inmate with an
opportunity to demonstrate the responsible use of resources provided by
the community. The recipients of an inmate's calls should also benefit
as they can send less money to the inmate for the same amount of
telephone time since the direct-dial rates are, on average, less
expensive than the former collect-call rates.
To further address the commenters' concerns, the Bureau has added a
provision to its final rule, excluding from the inmate's IFRP
calculation a set amount of monies deposited into the inmate's trust
fund account. See 28 CFR 545.11(b) and further discussion below in the
section entitled ``4. Conditioning Use of the Its Upon Participation in
the IFRP.'' This helps ensure that the inmate is able to make telephone
calls with monies sent to the inmate from members of the community for
telephone calls. If the inmate elects not to use these funds to call
the sender of the money, the sender has the option of not forwarding
additional monies.
e. Some commenters believe that the actual administration of the
ITS may be more expensive because additional staff will be needed to
operate the system. Implementation of the ITS at most institutions does
require additional employees who are responsible for the operation of
the ITS. However, the Bureau believes that the costs for additional
staff are well justified by the significant benefits of the ITS,
described above in the section entitled ``PURPOSE OF THE AMENDED
REGULATIONS.''
f. Comments stated that a ``dual system'' would not be difficult or
costly to install and maintain; e.g., that ``the systems already
installed at institutions could be reprogrammed very easily * * * with
little or no modification of existing equipment.'' The Bureau disagrees
with this position. The contract for the ITS was awarded for a
primarily direct-dial system. The contractor estimates that it would
cost several million dollars to modify the system to provide collect
call on demand capability.
g. Finally, there are security reasons for rejecting the
commenters' suggestion that the final regulations be amended to permit
inmates to make collect calls on demand. As noted above in the section
entitled ``PURPOSE OF THE AMENDED REGULATIONS,'' inmates are able to
use the unlimited collect call system to engage in various forms of
harassment and criminal activity. Providing a ``dual system'' that
would permit inmates to call anyone collect would do nothing to resolve
these problems. For example, an inmate could still bill a call to a
party who has no intention of paying. An inmate also could more easily
monopolize the telephone, due to the absence of financial constraints
on that inmate, and resulting tensions could jeopardize the safety and
security of the institution.
It might be possible to curb some of this abuse by limiting inmate
collect calls to numbers on an approved telephone list and requiring
those inmates to use Personal Access Codes (PACs) similar to those
required by these amended regulations for making direct-dialed ITS
calls. However, again, this would not prevent inmates from billing
calls to a party who has no intention of paying. In addition, inmates
would have less of an incentive to keep secret their PACs, as required
in 28 CFR 540.101(c). The PACs could be used to place collect calls,
for which the inmates bear no financial responsibility, rather than
direct-dialed calls, for which the inmates are financially responsible.
This would undermine many of the security features of the ITS
because it would be more difficult for the Bureau to monitor and
restrict illegal or abusive inmate telephone calls if the Bureau did
not know which inmate was using which PAC. Similarly, an inmate could
circumvent some of the telephone list restrictions by using other
inmates' PACs to call numbers that he or she was not permitted to call.
In concluding a response on this issue, the Bureau believes that
restricting collect calls on demand furthers important penological and
security goals. At the same time, the final rule adequately addresses
the needs of inmates to make collect calls in appropriate
circumstances. For these reasons, the Bureau has decided not to
implement a ``dual system'' with collect call on demand capability.
3. Constitutional Concerns
Some commenters suggested that operation of the ITS is a violation
of the constitutional rights of inmates and others, as follows:
a. First Amendment rights to free speech. Several commenters
claimed that the proposed regulations violate their First Amendment
rights to free speech without providing any detail as to the alleged
violations. Our review of the comments on this issue suggests that at
least some of the the arguments are based on inaccurate or unrealistic
expectations.
The Bureau, by implementing the ITS, does not intend to, nor does
it, unconstitutionally restrict an inmate's opportunity for freedom of
speech. Bureau regulations provide for several means of communication,
including correspondence, visiting and telephones. See 28 CFR part 540,
subparts B and D. The revised rule is not intended to, nor does it,
prevent an inmate from exercising his or her right to communicate.
One inmate commenter said that he would have personally called in
his comments on the proposed rule but that ``the number was not
approved.'' The Bureau points out that this commenter would not have
been able to call in his comments under the former collect call system
either, as the Bureau does not accept collect calls and the appropriate
method for commenting on proposed regulations is to send written
comments to the Bureau.
One commenter, an association of newspaper editors and reporters,
asserted that the ITS hinders the rights of the press and the public to
gain access to important information about prison inmates and prison
conditions. Primary concerns expressed by the commenter were that the
revised telephone regulations would hamper the ability of inmates to
communicate with the press and that the regulations potentially
threaten the relationship between journalists and their sources; that
restrictions on collect calls and the use of an authorized telephone
list establish procedural hurdles placing significant new burdens on
the inmate's ability to reach the community; that the ITS does not
allow for timely telephone access to the media; that the disclosure by
a journalist of the information required by the Request for Telephone
Privilege form was inappropriate. The commenter noted that journalists
do not have to provide this information in order to receive Special
Mail from inmates. The commenter further indicated that while Bureau
regulations may implicate substantial government interests, the
regulatory sweep is too broad.
As an initial matter, the Bureau's revised telephone regulations do
not conflict with what the commenter seems to identify as a First
Amendment requirement that prisoners be allowed to call members of the
news media. Inmates have no First Amendment entitlement to telephone
use, or to the unrestricted use of the telephone. See Benzel v.
Grammer, 869 F.2d 1105 (8th Cir. 1989), cert denied, 493 U.S. 895
(1989). Similarly, the First Amendment does not entitle the press to
any greater right of access to prisons or inmates confined therein than
the general public. See Pell v. Procunier, 417 U.S. 817, 41 L.Ed.2d
495, 94 S.Ct. 2800 (1974); Saxbe v. Washington Post, 417 U.S. 843, 41
L.Ed.2d 514, 94 S.Ct. 2811 (1974). In Pell, the Supreme Court held that
alternative means of communication is a relevant factor in balancing
First Amendment rights with legitimate government interests.
More specifically, the Bureau notes that the new regulations permit
inmates to list telephone numbers for members of the media on the same
terms and conditions as telephone numbers for any other person. Thus, a
member of the news media, as with any other person, may be included on
an inmate's telephone list except when Bureau staff determine that
contact with the person will pose a threat to institution security and
good order, or a threat to the public. See 28 CFR 540.101(a).
In addition, as the commenter acknowledges, the Bureau affords
inmates the opportunity to write to members of the news media via
sealed correspondence identified as ``Special Mail.'' See 28 CFR part
540, subpart B. Similarly, as the commenter also acknowledges, Bureau
regulations (see 28 CFR part 540, subpart E), provide for media visits
to prisons to observe conditions and interview inmates. These
provisions provide the news media ample opportunity to have effective
communications with those in prison. Thus, while Saxbe held that the
press has no First Amendment right to greater access than the public,
the Bureau, through its Special Mail and contact with the news media
provisions, has elected to provide the news media with such privileges.
The revised telephone regulations do not change or affect the
regulations regarding Special Mail or media visits. The revised
telephone regulations will continue to work in concert with current
Bureau regulations on correspondence, visits, and contacts with the
news media.
The commenter, while acknowledging the existence of these
opportunities between inmates and the press, asserts that mail does not
offer the advantages of instant communication available through the
telephone. We specifically disagree with the commenter's subsequent
statement that the proposed rule is inappropriate because ``* * * an
initial telephone conversation may often be required to convince a busy
journalist that an inmate's story truly is newsworthy.'' Regulations
for inmate telephone use are intended to provide inmates with a
supplemental means of communication that is consistent with other
aspects of correctional management, and are not intended to function as
a convenience for the news media in the editorial decision-making
process.
Comments suggested that the revised telephone regulations impose an
unconstitutional prior restraint on First Amendment freedoms. For
reasons discussed below, in the section entitled ``5. LIST OF NUMBERS
TO BE CALLED.'', the Bureau believes that requiring inmates to submit
lists of telephone numbers does not constitute an unconstitutional
prior restraint. Briefly, this procedure furthers legitimate
governmental interests in maintaining the safety and security of Bureau
institutions; the Associate Warden may deny placement of a telephone
number on an inmate's telephone list if he or she determines that there
is a threat to institution security and good order or a threat to the
public; and any disapproval must be explained in writing, and is
subject to appeal through the Administrative Remedy Program. See 28 CFR
540.101(a)(3).
Finally, with respect to the Request for Telephone Privilege form
(``form''), the Bureau has decided to discontinue use of the form, for
reasons described below in the section entitled ``b. Fourth Amendment
rights to privacy.'' Rather, except for immediate family members and
those persons already on an inmate's visiting list, a letter will be
sent to potential recipients of telephone calls to notify them that
they have been placed on an inmate's telephone list and to inform them
of the procedure to follow if they do not want to receive calls from
that inmate. No specific information is required from potential
recipients. This change should substantially accommodate concerns on
this issue.
b. Fourth Amendment rights to privacy. Several non-inmate
commenters claimed that the proposed regulations violate their Fourth
Amendment rights to privacy. Some comments objected to the form
addressed to potential recipients of inmate telephone calls, claiming
that they should not have to be ``investigated'' in order to receive a
telephone call.
The Request for Telephone Privilege form (``form''), as originally
developed by the Bureau, included questions as to the relationship of
the recipient to the requesting inmate, possible criminal background of
the recipient, and contacts, if any, of the recipient with other
inmates. The Bureau has reassessed the benefits of this form and has
decided to discontinue its use. Therefore, the proposed rule has been
revised to provide for potential telephone call recipients (other than
immediate family or persons on the inmate's visiting list) to be
notified in writing that they have been placed on an inmate's telephone
list. See 28 CFR 540.101(a)(2). The written notice informs recipients
that they can notify the institution in writing if they do not want to
receive calls from the inmate. The notice does not request any
information from the recipient, and the recipient will not have to
return the notice to the institution in order to receive calls from the
inmate.
Another comment stated that consent should be sought from those
persons whose names and telephone numbers have been placed on an
inmate's telephone list. For several reasons, the Bureau disagrees.
First, requiring each recipient's prior consent would impose an
administrative burden resulting in delayed processing of inmate
telephone lists. Specifically, obtaining prior consent would require
the Bureau to send each potential recipient a form asking if the
recipient wanted to receive an inmate's calls. If the potential
recipient wanted to receive the calls, he or she would then have to
return the completed form back to the institution before the number
could be entered on the inmate's telephone list. During the weeks or
months to complete this process, the inmate would be unable to place
non-emergency calls to this potential recipient. This anticipated delay
was a matter of concern to some commenters and is avoided in the final
rule by discontinuing the use of the form requesting prior consent from
potential recipients.
Second, to the extent that non-inmate commenters were concerned
about receiving unwanted calls from inmates, the Bureau believes that
this concern is substantially alleviated by sending a notice letter to
potential recipients other than an inmate's immediate family and
persons on the inmate's visiting list. In the event a recipient
subsequently notifies us in writing that he or she does not wish to be
contacted, the recipient will be removed from the inmate's list. See 28
CFR 540.101(a)(2).
A letter will not be sent to an inmate's immediate family and
persons on the inmate's visiting list because the Bureau assumes that
these individuals would not object to receiving telephone calls from
the inmate. Of course, if these individuals do not want to receive
calls from an inmate, they may simply notify the Bureau in writing and
the Bureau will remove their numbers from the inmate's telephone list.
In addition, the final rule contains other provisions that seek to
protect the public from harassing or unwanted inmate calls. First, the
rule provides that the inmate shall acknowledge that, to the best of
the inmate's knowledge, the person or persons on the list are agreeable
to receiving the inmate's telephone call and that the proposed calls
are to be made for a purpose allowable under Bureau policy or
institutional guidelines. See 28 CFR 540.101(a)(1). Inmates who violate
this provision may be subject to discipline. See 28 CFR 540.100(a).
Also, the Bureau may deny a proposed telephone number if it determines
that the inmate's ability to call that number would pose a threat to
the public. See 28 CFR 540.101(a)(3).
Finally, the Bureau's compiling of inmate telephone lists to
effectively manage a debit-billing telephone system does not violate
any Fourth Amendment privacy rights of the recipient. This information
is voluntarily provided to the Bureau by inmates who seek to make
telephone calls and there is no reasonable expectation of privacy in
this information. A person's telephone number is known by the telephone
company and the people who call the number, as well as by the person to
whom the number is listed. See Smith v. Maryland, 442 U.S. 735, 61
L.Ed.2d 220, 99 S.Ct. 2577 (1979).
In addition, the monitoring of inmate telephone conversations
(other than properly placed calls to attorneys) is a matter of public
record. See newly designated 28 CFR 540.102 (formerly Sec. 540.101). A
number of courts have upheld this practice as permissible under federal
wiretap statutes (See, e.g., U.S. v. Paul, 614 F.2d 115 (6th Cir.,
1980), cert. denied, 446 U.S. 941) and not prohibited by the Fourth
Amendment. (See, e.g. Lee v. Carlson, 645 F.Supp 1430 (S.D.N.Y. 1986).
This fact further undermines any possibility that a recipient of inmate
calls can have a reasonable expectation of privacy with respect to the
information on inmate telephone lists.
c. Sixth Amendment right to counsel. Several commenters claimed
that the proposed regulations violate their Sixth Amendment right to
counsel. One commenter noted that ``in this policy there are no
guidelines for legal calls.'' Some commenters claimed that the proposed
regulations prevent or in some manner limit legal calls. We disagree.
The amended telephone regulations do not affect an inmate's access to
unmonitored telephone conversations with his or her attorney.
Separate provisions continue to exist for inmates to make
unmonitored legal calls and these provisions remain unchanged by the
revised telephone regulations, although the Bureau has redesignated
them from 28 CFR 540.101 and 540.102 to 28 CFR 540.102 and 540.103.
Further, as provided in redesignated Sec. 540.103, the Warden may
not apply frequency limitations on unmonitored inmate telephone calls
to attorneys when the inmate demonstrates that communication with
attorneys by correspondence, visiting, or normal telephone use is not
adequate. We also note that an inmate may choose to place an attorney
on his or her telephone list, with the understanding that calls placed
on the ITS are subject to monitoring.
For the above reasons, the amended telephone regulations do not
change inmate access to unmonitored attorney telephone calls and
therefore do not interfere with an inmate's right to counsel.
4. Conditioning Use of the ITS Upon Participation in the IFRP
Several commenters objected to conditioning inmate telephone use
upon the inmate's participation in the Bureau's Inmate Financial
Responsibility Program (IFRP). These objections were based upon a
variety of concerns, and are addressed below.
As a general matter, and as noted in the proposed rule, the IFRP
offers inmates the opportunity to develop a plan to meet certain
legitimate financial obligations and to make payments toward fulfilling
that plan. Examples of these obligations include court-ordered
restitution, fines, or other government obligations. The effects of
non-participation are set forth in the Bureau's existing rule on inmate
financial responsibility. See Sec. 545.11(d) of 28 CFR part 545,
subpart B.
In the proposed rule, the Bureau added a new provision to
Sec. 545.11(d) which would ordinarily limit the inmate's telephone use
to one call every three months. For the reasons discussed above in the
section entitled ``PURPOSE OF THE AMENDED REGULATIONS,'' the Bureau
believes that it is appropriate to restrict the telephone access of
inmates who refuse to participate in the IFRP. However, the Bureau is
modifying this rule to provide no more than one inmate-paid call every
month for inmates in IFRP-refuse status, unless the Warden allows
additional inmate-paid calls for compelling circumstances. See 28 CFR
Sec. 545.11(d)(10). Inmates in IFRP-refuse status may also make
unmonitored attorney calls pursuant to the procedures specified in
redesignated Secs. 540.102 and 540.103.
As modified, the rule will enable inmates in IFRP-refuse status to
have access to the telephone, while still contributing significantly to
an important correctional management goal of the Bureau: the inmate's
increased acceptance of personal responsibility. One inmate commenter
seems to acknowledge this, in part, by stating, ``[i]f you got (fine,
asse[ss]ment) * * * you cannot call home or use phone period if you
don't pay * * *. This system of (phone bills) * * * affect[s] me [by] *
* * forc[ing] me to pay $300.00 fine.'' As noted in the above section
entitled ``PURPOSE OF THE AMENDED REGULATIONS'' and illustrated by the
above comment, the Bureau believes that the ITS is an additional
incentive for inmates to participate in the IFRP and pay their debts to
society.
Comments objected to the operation of the IFRP itself, claiming
that it punishes inmates without due process, or that it was
administered in an unfair manner. The IFRP is not intended to be, nor
is it, a disciplinary sanction; rather, it is a voluntary program used
as a factor to assess inmate progress in accepting financial
responsibility.
The IFRP has been duly promulgated through the rulemaking process
and upheld by the courts. See U.S. v. Williams, 996 F.2d 231 (10th
Cir., 1993); Dorman v. Thornburgh, 955 F.2d 57 (D.C. Cir., 1992);
Johnpoll v. Thornburgh, 898 F.2d 849 (2d Cir., 1990), cert. denied, 498
U.S. 819; James v. Quinlan, 886 F.2d 627 (3rd Cir., 1989), cert denied,
493 U.S. 870. Objections to its operation other than as relevant to
telephones lie outside the scope of this rulemaking. The Bureau does
note, however, that the Administrative Remedy Program (see 28 CFR part
542) provides a means for inmates who wish to challenge IFRP payment
schedules.
Some commenters objected to the operation of the IFRP with respect
to telephones, stating that inmate family or friends are afraid or
unwilling to send money to an inmate for telephone calls because the
sender has no control over how that money would be spent. These
commenters expressed concern that money sent to inmates for use in
payment of long distance telephone calls will be used to recalculate
the inmate's resources in determining an IFRP payment schedule.
Consequently, they feel that some of this money will be used to make
payments toward the inmate's fines rather than to pay for telephone
calls.
In response to this concern, the Bureau is amending its rule to
provide that $50.00 of the money deposited into an inmate's trust fund
account each month will not be considered in determining the IFRP
payment schedule. See revised 28 CFR 545.11(b). For purposes of this
calculation, the inmate trust fund account deposits include both
institution wages and funds sent to the inmate from members of the
community. The only limitation on the $50.00 monthly exemption is the
minimum requirement for IFRP contributions from UNICOR and non-UNICOR
work assignments, as set forth in existing 28 CFR 545.11(b)(1) and
(b)(2).
The $50.00 monthly amount was chosen because it is high enough to
enable the inmates to make a significant number of telephone calls. At
the same time, however, the Bureau believes that there should be a
specific limit on the amount of funds that will be excluded from
calculation in determining the inmate's financial plan. The $50.00
exclusion provides a clear rule that is easier to administer than one
which states that any funds designated for telephone calls will be
excluded from the calculation of an inmate's financial plan. Also, the
Bureau believes that inmates should be encouraged to fulfill their
financial obligations, e.g. pay court-imposed fines. The provisions of
new Sec. 545.11(d)(10), along with existing 28 CFR 545.11(b), help
achieve the objectives of both the commenters and the Bureau.
Concerns were expressed that the proposed regulations place unfair
telephone restrictions on inmates who cannot participate in the IFRP
because they do not have the funds to pay their fines. Such complaints
are based upon inaccurate assumptions that inmates, by not
participating in the IFRP, are prevented from having full telephone
access.
The Bureau's internal implementing instructions to staff regarding
the IFRP clearly state that inmates may be temporarily exempt from IFRP
participation when it is impossible for them to meet minimum payment
schedules because of their inability to secure institution employment
beyond maintenance pay and because of their absence of community
resources. Such inmates will not be placed in IFRP refuse status.
Therefore, they would not be affected by telephone restrictions based
upon refusal to participate in the IFRP. Further discussion concerning
telephone access for inmates without funds is discussed below, in the
section entitled ``7. COSTS...d. Inmates without funds.''
A commenter objected to the IFRP provision, stating that an inmate
with a fine who refused to participate in the IFRP could not call home
or use the telephone at all. This commenter also claimed that the
regulation ``cuts off'' all outside contact, including mail and
visiting, if no fine is paid. These contentions are not true. As noted
in other sections of this preamble, inmates who refuse to participate
in the IFRP have a variety of ways to communicate, including written
correspondence. They also may make a limited number of telephone calls,
as discussed above. Therefore, an inmate's outside contact is not ``cut
off'' if the inmate refuses to participate in the IFRP.
This same commenter complained that conditioning inmate telephone
use upon IFRP participation in effect forced him to work in an
industrial assignment and alleged that many inmates (20%) would not
work in Federal Prison Industries assignments except for the IFRP.
The Bureau first notes that industrial positions have long been
requested by inmates because of the higher wages and the opportunity to
learn skills for employment upon release. As noted by the Third Circuit
Court of Appeals, ``[a] Federal Prison industries job assignment * * *
is considered by many inmates to be more desirable than other types of
work assignments * * *'' James v. Quinlan, 866 F.2d 627, 628 (3rd Cir.,
1989). In fact, many institutions historically have had waiting lists
of applicants for these positions.
Even so, the Bureau believes that the operation of both the IFRP
and the ITS will result in increased interest in industrial
assignments, as suggested by this commenter, whose very complaint
demonstrates one of the Bureau's purposes in amending these
regulations. As a final note, even though institutions may have waiting
lists for industrial assignments, existing Bureau policy provides for
IFRP participants with obligations of at least $250.00 to receive
priority placement on industrial assignment waiting lists.
In conclusion, the IFRP remains a voluntary program. The amended
telephone regulations are intended to encourage inmates to work, accept
personal responsibility, responsibly manage their finances, and pay
their fines and other legal obligations. For the reasons stated in the
section entitled ``Purpose of the Amended Regulations,'' above, the
Bureau believes that it is appropriate to provide telephone privileges
that are consistent with these correctional management goals.
5. List of Numbers To Be Called
Several commenters objected to the portion of the proposed rule in
Sec. 540.101(a) that specified that inmate calls ordinarily shall be
placed to a number on their approved telephone lists, which may contain
up to 20 telephone numbers. Some commenters seemed to object to having
any list at all or favored no restrictions as to who goes on the list,
with the Bureau giving notice prior to a name being taken off the list.
Other comments concerned the limitation of 20 numbers.
There are sound correctional reasons for requiring that inmate
calls ordinarily be placed to a number on an approved telephone list.
Among them are the following:
Under the former collect call system, there have been instances in
which members of the public, including court personnel, victims, and
family of former inmate associates, reported receiving abusive or
harassing telephone calls from inmates and requested that the Bureau
preclude the inmate from calling them in the future. As noted above in
the section entitled ``Purpose of the Amended Regulations,'' there were
also cases in which inmates used the telephone to engage in criminal
activity. Short of standing next to the telephone and watching every
call the inmate made--a nearly impossible task given the large number
of inmates and the limited number of staff at the institutions--the
Bureau has no practical way to prevent such an inmate from making
additional improper calls through the former collect call system.
The amended regulations are expected to help reduce inmate abuse of
telephone privileges. By requiring that potential recipients of inmate
telephone calls be notified that they have been placed on an inmate's
telephone list (other than immediate family members or those persons
who are already on the inmate's approved visitor list) and by limiting
calls to numbers on the telephone list, the amended regulations help
protect the public, including witnesses, victims, or other people who
do not wish to have contact with the inmate, from receiving unwanted
inmate telephone calls. In addition, by permitting the Associate Warden
to deny placement of a number on an inmate's telephone list, the
regulations provide an opportunity to prohibit telephone calls to
persons that are determined to be a threat to the security and good
order of the institution, or a threat to the public, before the calls
occur.
In the event that the Bureau removes a number from an inmate's
telephone list and the inmate then uses the telephone to harass that
individual (by using another inmate's PAC number, for example), the
inmate can be disciplined for violating regulations, as the inmate is
required to acknowledge that persons on the telephone list are
agreeable to receiving the inmate's telephone calls and that the calls
will be made for permissible purposes. See 28 CFR 540.101(a)(1) and
Sec. 540.104, formerly Sec. 540.103. The telephone list requirement is
intended to help protect inmates as well. In a debit-billing system,
there will be some incentive for one inmate (Inmate A) to use another
inmate's (Inmate B's) PAC number to make telephone calls charged to
Inmate B's account. However, this incentive is substantially reduced if
Inmate A can only call the approved numbers on Inmate B's telephone
list.
Some commenters claimed that inmates should be permitted to call
more than 20 numbers. The proposed rule limited the telephone lists to
20 numbers because the Bureau believes that number is high enough to
accommodate the needs of the average inmate without undermining the
security justifications for the list and unduly burdening Bureau staff.
This belief is supported by a recent sampling of five ITS-activated
institutions, which indicates that the inmate ITS accounts, on average,
listed fewer than 10 telephone numbers and that 92 percent of the
inmate ITS accounts listed fewer than 20 telephone numbers.
Specifically, of the approximately 10,730 inmate ITS accounts surveyed,
less than 900 inmate ITS accounts listed 20 telephone numbers.
However, in response to comments that some inmates desire to submit
more than 20 numbers, the Bureau is amending these regulations to allow
an inmate to place up to 30 numbers on the telephone list. The Bureau
believes that for those inmates with such a need, the submission of up
to 30 numbers may effectively be handled by staff without undermining
the security reasons for maintaining a list of numbers. The final rule
also provides that the Associate Warden may authorize the placement of
additional numbers on the inmate's telephone list based on the inmate's
individual situation, e.g., size of family. See 28 CFR 540.101(a). This
change should accommodate the requests of inmates desiring to submit
more than 30 numbers.
One of the inmate commenters seeking unlimited numbers on his
telephone list also requested authority to call 800 numbers and to
receive pre-paid credit cards from telephone companies. Use of 800
numbers and pre-paid credit cards would undermine the correctional
management objectives of the ITS listed above in the section entitled
``Purpose of the Amended Regulations''. If an inmate has a need to call
an 800 number under compelling circumstances, a request should be made
for a staff-assisted call, as provided in 28 CFR 540.105(d).
Some comments suggested that the Bureau should permit inmates to
submit updates to the list more frequently than once a quarter. The
Bureau believes that the amendment to the final rule providing that
inmate telephone lists may contain up to 30 numbers, rather than 20,
should reduce generally the need for more than quarterly updates, as
provided in these regulations.
However, the final rule also adds the phrase ``at least'' to
provide the Warden the authority to allow more frequent updates, if
appropriate. In addition, if an inmate has a demonstrated need for
making a call to a number that is not on the inmate's telephone list,
the inmate may be permitted to make additional calls.
Concerns were expressed about delays in processing updates to the
telephone lists, once inmates have submitted their requests. The final
rule will eliminate processing delays caused by the requirement in the
proposed rule that the written authorization form be returned prior to
placement of the telephone number on the inmate's telephone list. The
final rule discontinues use of this form and ordinarily permits the
immediate placement of telephone numbers on the inmate's telephone
list. In addition, to avoid undue processing delays, the Bureau's
implementing guidelines provide that once initial lists and updates are
submitted, staff will process them ordinarily within ten working days.
Some comments objected to Bureau staff review of numbers submitted,
suggesting that such review would be arbitrary and without standards.
Another comment stated that the new rule constitutes a loss of
opportunity to call all persons without a prior restraint.
The Bureau's rule does not prevent an inmate from submitting any
telephone number he or she chooses to submit, including telephone
numbers for persons other than family and friends. As revised, the
final rule provides for the requested telephone numbers to be added to
the inmate's telephone list. Further, the final rule modifies proposed
Sec. 540.101(a) with respect to specifying the grounds for rejection of
requested numbers. As modified, that provision, now 28 CFR
540.101(a)(3), states that the Associate Warden may deny placement of a
telephone number on an inmate's telephone list if the Associate Warden
determines that there is a threat to institution security and good
order or a threat to the public. Any disapproval must be documented in
writing to both the inmate and the proposed recipient of the calls.
The Bureau notes that one commenter acknowledged that ``* * * some
of this [disapproval] is understandable, i.e., security, threats to the
public safety; * * *'' Examples of situations that may warrant
rejection include, but are not limited to, indication that the proposed
recipient of the call is involved in the introduction of contraband
into the institution, in an escape plot, or in other activity
threatening the public safety, such as harassing victims or witnesses.
The rejection of a number may be appealed, as discussed in the next
section.
6. No Separate Appeal Process
Some commenters complained that the proposed rule does not provide
for any separate appeal of ITS-related decisions, specifically,
decisions concerning the inmate's list of numbers to be called. The
Bureau believes it is unnecessary to provide for any separate ITS
appeal process because a program is already in place which is well-
known and used by inmates to raise individual concerns about any
correctional issue.
All inmates entering BOP institutions are informed of the
Administrative Remedy Program, described in 28 CFR part 542. Briefly,
the Program operates as follows: At the institution level, an inmate
may raise concerns formally by filing a Request for Administrative
Remedy on a form known as a BP-9. If the inmate disagrees with the
Warden's response, he or she may file an Appeal to the Regional
Director on a form known as a BP-10. If the inmate is dissatisfied with
the Regional Director's response, he or she may file an Appeal to the
Office of the General Counsel on a form known as a BP-11.
The Administrative Remedy Program is available for inmates to raise
individual ITS-related complaints. Recently, the Bureau surveyed all
institutions where the ITS has been implemented to determine the level
of concern. This survey showed that only a very small number of ITS-
related Administrative Remedy requests and appeals have been filed. In
fact, only one percent or less of the total Administrative Remedy
requests and appeals filed during the survey period were ITS-related.
Given the successful operation of the Administrative Remedy
Program, the Bureau finds no reason to provide for any separate inmate
appeal process in the revised telephone regulations. However, in
response to these comments, the Bureau is modifying the final rule to
include a reference to the Administrative Remedy Program. See 28 CFR
540.101(a)(3).
As amended, the final rule provides two remedies for individuals in
the community who may wish to contest a decision to deny placement of
their telephone number on an inmate's telephone list. The first option
is for the involved inmate to file the aforementioned Administrative
Remedy request. The second option is for the person in the community to
write to the Warden requesting reconsideration of the decision. A
statement to this effect has been added to the rule. See Sec. 540.101
(a)(3).
7. Costs
Comments regarding costs of ITS telephone calls include the
following four areas of concern:
a. Charging inmates for calls. Some commenters objected to inmates
paying for their calls directly, claiming that it was unfair for
inmates to have to choose between making telephone calls and purchasing
other items in the commissary. The Bureau's response to these
objections is set forth above in the Response to Public Comment section
entitled ``2. Replacement of Collect Call System'', part b. In
addition, these comments disregard the fact that the Bureau's telephone
regulations have always stated that inmates are responsible for the
costs of their calls. See former Sec. 540.104. It is only recently,
however, that the Bureau has had the technical capability to bill the
inmates directly.
One inmate commenter apparently prefers to pay for his calls
directly, as the costs of ITS direct-dialed calls are generally less
expensive than operator-assisted collect calls. This commenter reported
that his family had experienced serious difficulties because of the
large telephone bills from collect calls and stated that ``[a]t the
time, I had money in my commissary account. Not enough money to pay for
the calls at the extremely high collect call rates, but certainly
enough to pay for them at dialing direct rates.''
b. Charging a flat rate. Some commenters objected to the flat rates
charged for ITS direct-dialed calls. Inmate comments discussed taking
advantage of discounts offered by various telephone service companies.
One commenter, a telephone service company, claimed that the proposed
rule provided insufficient information to determine how the Bureau will
support the billing configuration.
The final rule has no impact on the type of service necessary to
support the ITS. As currently designed, local telephone calls placed on
the ITS use telephone services provided by the local telephone company.
Domestic long distance telephone calls are placed on the U.S.
Government's FTS2000 network. The FTS2000 network is a telephone
service provided through a contract between the General Services
Administration and U.S. Sprint. The Bureau is an authorized user of the
FTS2000 network. The FTS2000 network offers no time of day or day of
week discounts.
A correctional institution is a unique environment. Unlike the
general public, inmates have limited control over when they may gain
access to a telephone. It is therefore desirable for correctional
management reasons to provide all inmates with the same rate,
regardless of what time they might be able to access a telephone. In
addition, a flat rate helps manage use of the telephone, since there is
no longer any advantage to placing a call at a certain time of day.
This helps to reduce tensions between inmates during the evening, when,
under the former collect call system, rates are lowest. Inmates can
also anticipate their cost for the call, regardless of when they may
have the opportunity to place the call.
The charge to the inmates for the use of the ITS is designed to
cover the costs of the ITS, including the cost of the telephone
service, the salaries of employees hired to maintain the system, the
cost of the lease and maintenance of the ITS software and equipment
(excluding recording equipment), and the cost of any necessary
supplies.
In most cases, the resulting flat rate for direct-dialed calls
placed on the ITS is considerably less expensive than the same collect
calls, even before taxes are added to the collect call costs. For
example, from the institution where the majority of inmate comments on
this rule originated, a seven-minute collect local call costs $1.25.
The same local call, if direct-dialed on the ITS, would cost $.50, a
savings of $.75.
Similar savings are evident on costs of long-distance calls. For
example, again from the institution confining the majority of inmates
who submitted comments, a seven-minute collect long-distance call to
New York City costs $3.62 in the daytime, $3.06 in the evening, and
$2.92 on the weekend. The ITS cost for the same call, regardless of
time or day, is $1.75, $1.17 less than the lowest available collect
call rate.
Some inmate commenters compared ITS rates with costs of telephone
calls available in the industry through local carrier discounts, etc.
The Bureau reminds these commenters that such discounts are not
available in Bureau institutions and therefore, it is more appropriate
to compare the ITS rates to the collect call rates rather than to these
discounted rates.
c. International calls. Some inmate commenters acknowledged that
they were unable to make collect calls to their families in certain
foreign countries. One commenter complained, however, that it costs
more to place ITS international calls, specifically to Norway and
Colombia. This commenter apparently does not dispute the fact that ITS
calls to these countries are generally less expensive than collect
calls. Rather, the commenter's complaint was based upon speculated
costs for discount direct-dialed services not available to inmates.
As noted above, the only true comparison that can be made is
between the costs of collect calls and ITS direct-dialed calls. These
comparisons easily support the Bureau's belief that ITS calls are
generally less expensive. A recent survey comparing the costs of ITS
calls and the costs of collect calls from three institutions to several
countries, including Norway and Colombia, supports the Bureau's
position that the ITS calls are generally less expensive than collect
international calls.
d. Inmates without funds. Several commenters stated that the
proposed rule was unfair to indigent inmates, that these telephone
regulations discriminate against inmates who do not have much money,
and that they preferred the use of collect calls. However, neither the
amended regulations, nor the ITS, prevent inmates' friends and family
members who would accept collect calls from sending money to defray the
expense of the direct-dial calls. Thus, under both the former collect
call system and the new ITS debit billing system, an inmate claiming
indigency is dependent upon someone else to pay for the inmate's
telephone calls.
The Bureau believes that even inmates with limited financial
resources need to develop budgeting skills and to accept personal
responsibility for their actions. It is therefore appropriate to
require these inmates to pay for some of their telephone calls.
However, to ensure that such inmates are able to make telephone calls,
the Bureau has amended the proposed rule to permit inmates without
funds to make collect calls.
The phrase ``inmate without funds'' is defined as an inmate who has
not had a trust fund account balance of $6.00 for the past 30 days. See
28 CFR Sec. 540.105(b). The $6.00 ceiling was selected because it is
above the maintenance pay level. Maintenance pay, which is currently
$5.25 per month, is the lowest pay grade for inmates at Bureau
institutions. By defining ``inmates without funds'' as an inmate who
has not had a trust fund account balance for the past 30 days of $6.00,
the regulations ensure that inmates who are in the lowest pay grade and
who lack outside sources of income will be able to make some collect
telephone calls. The Bureau believes this standard is fairer and easier
to apply uniformly than an unspecified ``indigency'' standard, which
would be subject to discretionary interpretation.
The Bureau has modified its telephone regulations to more clearly
address the issue of telephone access for inmates without funds. As
stated in the proposed rule, the Warden may direct the government to
bear the expenses of inmate telephone use under compelling
circumstances. In addition, the Bureau has added a new section to the
final rule to allow inmates without funds to make some collect
telephone calls. See 28 CFR Sec. 540.105(b). As revised, the final rule
provides a collect call every month and allows the Warden discretion to
provide greater access based upon local conditions, e.g., size of
population, staff resources, usage demand. Implementing instructions to
this provision recommend that an inmate without funds be provided
approximately 30 minutes of collect calling capability each month.
It is noteworthy that a commenter, in discussing international
calls, indicates that where she was unable to place collect calls
because such calls were not processed by the telephone companies, the
Bureau placed, and paid for, the call. This acknowledgement clearly
demonstrates the Bureau's commitment to provide telephone access for
needy inmates. In those instances, the compelling circumstance was
created by the difficulties in placing such calls (e.g., some non-
citizen inmate commenters reported their countries would not accept
collect calls). In implementing the ITS, which provides for direct-
dialed international calls, the Bureau is thus in a better position to
commit its financial resources to those instances where the inmate is
truly lacking in funds.
One inmate noted that the Bureau refused to pay for a telephone
call to a foreign country that did not accept collect calls. As noted
above, the Bureau is committed to making reasonable accommodations by
assuming payment for a limited number of telephone calls in cases of
compelling circumstances, such as when the inmate has lost contact with
his family. That was not the case in the commenter's situation, as this
commenter did acknowledge the existence of telephone contact with
family members in this country.
In closing the Bureau's response to comments relating to costs, we
note the Bureau has also decided to further amend 28 CFR Sec. 540.100
to provide for an inmate who has not been restricted from telephone use
as the result of an institution disciplinary action to make at least
one telephone call each month. The existing rule provides for at least
one call every three months. The Bureau believes this change helps to
further ensure an inmate has an opportunity for telephone
communications consistent with correctional management objectives.
8. Privacy Act Concerns
Comments expressed concern that in operating the ITS the Bureau's
collection, maintenance, and use of information about potential
recipients of inmate telephone calls violates the recipients' statutory
rights to privacy under the Privacy Act, 5 U.S.C. 552a. Some commenters
objected to what they perceive as the Bureau's alleged use of
information on inmate visiting lists to create or compile telephone
lists.
The amended regulations do not contemplate the Bureau's use of
visiting lists as the source of names or numbers for use on inmate
telephone lists. The final rule states, instead, that inmates are to
provide information for the creation and maintenance of their telephone
lists. See 28 CFR 540.101(a)(1).
These nonincarcerated individuals also objected to the Bureau's
obtaining information about them from the telephone lists submitted by
the inmates. The Privacy Act provides in relevant part that, ``to the
extent practicable,'' an agency shall collect information directly from
an individual about whom the agency may make ``adverse
determinations.'' 5 U.S.C. 552a(e)(2). It is far more practicable to
collect up to 30 names and telephone numbers from a single inmate than
it is to collect them from each recipient of that inmate's calls.
Commenters also expressed concern about the form addressed to
potential recipients of an inmate's calls on the ground that the form
seeks information about those individuals which they allege to be
private information. As discussed above in the section entitled ``3.
CONSTITUTIONAL CONCERNS * * * b. Fourth Amendment rights to privacy.'',
the Bureau has revised the final rule to eliminate this form, and
replaced it with a notice letter to potential recipients who are not
immediate family or persons already approved for the inmate's visiting
list. This change should substantially accommodate comments on this
issue.
9. Miscellaneous
In addition to the previous issues, comments received by the Bureau
raised several other issues, and are addressed below:
a. One commenter, a telephone service company, perceived a
potential for conflict between the proposed rule and potential orders
and rules that may be issued by the Federal Communications Commission
(FCC) arising out of the currently pending Billed Party Preference
docket (BPP). The Bureau believes that it is not necessary to respond
to comments based upon ``potential problems''. Accordingly, if the FCC
or any other agency issues regulations in the future which conflict
with these telephone regulations, the Bureau will take appropriate
action at that time.
b. Commenters objected to the ITS stating that it was arbitrary and
that its current use violates 28 CFR parts 540 and 545. For the reasons
discussed above, there are valid correctional management reasons for
amending the regulations to provide for the operation of the ITS. We do
not consider these regulations to be arbitrary, as the ITS is being
implemented following a pilot program and an assessment that it better
addresses the Bureau's correctional goals and institution security
needs.
With respect to the IFRP provision, the Bureau believes that the
discussion above sufficiently addresses this comment.
c. A commenter wanted assurance that there would be no harrassment
or punitive actions based on inmate objection to the ITS
implementation. Bureau staff are professionals and are provided
training on their role and responsibilities. Staff retaliation against
inmates is not tolerated. The Bureau's Office of Internal Affairs and
the Inspector General of the Department of Justice will thoroughly
investigate any allegations of misconduct. The Bureau's Chief Executive
Officers will take appropriate action where indicated. The
Administrative Remedy Program is another vehicle available to inmates
to raise allegations of staff misconduct.
d. Commenters stated that it would be an additional financial
hardship to have people send money. The basis for this complaint is not
entirely clear in one comment; in a second comment, the commenter
refers to the family sending money for hygiene items and that to
require money for telephone use would pose an additional financial
burden. As noted earlier, the Bureau does provide for basic hygiene
items.
Some commenters were concerned that it may be necessary to exchange
foreign currency prior to residents of a foreign country forwarding any
funds, with some stating that their country does not allow its currency
to leave the country. As noted above, the lower ITS rates should
provide some relief for such incidental costs as exchange fees, etc.
e. A commenter mistakenly believes that loss of commissary
privileges as a result of disciplinary action will also result in the
loss of telephone privileges. This is not the case. As with postage
stamp purchases, telephone access is independent of the regular
commissary. For an inmate to lose telephone privileges as a result of
disciplinary action, that sanction must be specifically stated.
f. A commenter objected to the proposed rule not being posted in
the prisons within a timely manner. It is Bureau policy to post
proposed rules in its institutions to facilitate inmate comments. The
date of posting is often dictated, in part, by when we receive the
requisite copies of the Federal Register and by mailing time. On
occasion, delays can result from this process. To accommodate this
commenter's concerns, the Bureau plans to extend (ordinarily to 60
days) the time for public comment on future Bureau rules.
g. A commenter favors letting each person who receives a call
decide whether to accept or reject that call, without sending money. In
response, the Bureau first notes that there is no requirement for an
outside person to forward the inmate funds. As already discussed, the
Bureau believes that there are strong correctional management reasons
for restricting collect telephone calls and for providing that inmates
should ordinarily pay for their telephone calls. Certainly, where the
need exists, and as set forth in the rule, the Bureau will provide
collect call capability or, in the alternative, pay for the call
itself.
Each potential recipient of a call has the option of refusing
consent to be maintained on the inmate's telephone list. Even if an
individual elects to remain on the inmate's telephone list, he or she
can use other means, such as an answering machine or other services
provided by local telephone carriers (caller ID, for example), to
screen incoming calls, or simply hang up.
h. One inmate commenter alleged that the Bureau transferred inmates
to institutions far removed from anticipated release areas in violation
of Bureau designation practice, resulting in reduced opportunity for
visits and higher costs for telephone communications. This commenter
recommended that a certain number of free telephone calls be provided
to any inmate located 500 miles or more from a home city.
As a general policy, the Bureau strives to locate inmates in
institutions consistent with their security needs within reasonable
proximity to a release residence. However, the Bureau's designation
policy also allows for exceptions to be made, based upon management
variables, e.g., institution capacity and individual inmate security
needs. The generally lower flat rate fees for ITS calls should benefit
such inmates. The regulations already contain provisions for the
placement of collect calls or for calls at government expense in cases
of compelling circumstances. See 28 CFR 540.105(d). The Bureau
therefore finds no reason to adopt this commenter's recommendation.
i. One inmate commenter objected to the proposed rule, claiming
that the telephone installed in her housing unit was not accessible to
wheelchair-bound or visually-impaired inmates. The Bureau assures this
commenter that it is Bureau policy to make every institution accessible
to disabled inmates, including the use of telephone equipment.
Institution staff have now resolved this commenter's problem by
adjusting the telephone location to permit access by the disabled.
The Bureau notes that another commenter claiming various
disabilities, visual and psychological, raised no objection to
accessibility. As noted above, the Bureau is committed to making
reasonable accommodations to meet the needs of all disabled inmates in
providing telephone access.
j. Commenters objected that the proposed rule did not define terms
such as ``emergency'' or ``rehabilitative goals.'' A commenter claimed
that staff was not available to inmates on a twenty-four hour a day,
seven-days a week basis. The Bureau wishes to assure this commenter
that every Bureau facility is staffed on a twenty-four hour a day,
seven-day a week basis.
As for a definition of rehabilitative goals, the final rule does
not include the term rehabilitation as a grounds for rejection of a
telephone number from an inmate's telephone list. The Bureau notes,
however, that while rehabilitation remains an important goal for the
Bureau's management of inmates, a specific definition cannot be given
because each situation is characterized by the facts and circumstances
existing for a particular inmate. For example, an inmate's unit team
will work with the inmate concerning areas of interest to that inmate
in preparation for the inmate's own self-improvement.
As for the definition of an emergency, this also must be predicated
on the given situation, e.g., loss of contact with the family or death
of a family member. See 28 CFR 540.101(e) and 540.105(d).
k. A commenter related an incident where she placed a collect call
to a Senator's office from an institution where the ITS is not yet
available and was asked for a return number, which she provided. The
commenter alleged that she never received a return call and was
subsequently informed by institution staff that she should no longer
call the Senator's office collect. We are unable to address this
complaint as it is unrelated to the proposed rule and is more properly
addressed through the Administrative Remedy Program discussed
previously. However, we note that, under the amended regulations,
inmates may choose to submit telephone numbers for Senators and other
elected officials on their telephone lists.
l. A commenter objected that the proposed rule was unfair to
inmates who were medically idle (i.e., unable to participate in a work
assignment because of a medical condition). If a medically idle inmate
is also an ``inmate without funds,'' as defined herein, then the final
rule accommodates this comment, because all inmates without funds may
make some collect calls or have the Bureau pay for the call in a
compelling circumstance. See 28 CFR 540.105(b) and 540.105(d)).
m. Former Sec. 540.105 is removed because its provisions are now
incorporated in other portions of the final rule or are no longer
necessary, due to changes in the Bureau's discipline policy.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of Executive Order 12866.
This rule has been reviewed by OMB pursuant to Executive Order 12866.
After review of the law and regulations, the Director, Bureau of
Prisons has certified that this rule, for the purpose of the Regulatory
Flexibility Act (Pub. L. 96-354), does not have a significant impact on
a substantial number of small entities.
List of Subjects in 28 CFR Parts 540 and 545
Prisoners.
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), parts 540 and 545 in subchapter C
of 28 CFR, chapter V are 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 is revised to read as
follows:
Authority: 5 U.S.C. 301, 551, 552a; 18 U.S.C. 1791, 3013, 3571,
3572, 3621, 3622, 3624, 3663, 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. Section 540.100 is revised to read as follows:
Sec. 540.100 Purpose and scope.
(a) The Bureau of Prisons extends telephone privileges to inmates
as part of its overall correctional management. Telephone privileges
are a supplemental means of maintaining community and family ties that
will contribute to an inmate's personal development. An inmate may
request to call a person of his or her choice outside the institution
on a telephone provided for that purpose. However, limitations and
conditions may be imposed upon an inmate's telephone privileges to
ensure that these are consistent with other aspects of the Bureau's
correctional management responsibilities. In addition to the procedures
set forth in this subpart, inmate telephone use is subject to those
limitations set forth under the inmate financial responsibility program
(see 28 CFR 545.11) and those which the Warden determines are necessary
to ensure the security or good order, including discipline, of the
institution or to protect the public. Restrictions on inmate telephone
use may also be imposed as a disciplinary sanction (see 28 CFR part
541).
(b) Except as provided in this rule, the Warden shall permit an
inmate who has not been restricted from telephone use as the result of
a specific institutional disciplinary sanction to make at least one
telephone call each month.
Sec. 540.105 [Removed]
Secs. 540.101 through 540.104 [Redesignated as Secs. 540.102 through
540.105]
3. Section 540.105 is removed and Secs. 540.101 through 540.104 are
redesignated as Secs. 540.102 through 540.105.
4. New Sec. 540.101 is added to read as follows:
Sec. 540.101 Procedures.
(a) Telephone list preparation. An inmate telephone call shall
ordinarily be made to a number identified on the inmate's official
telephone list. This list ordinarily may contain up to 30 numbers. The
Associate Warden may authorize the placement of additional numbers on
an inmate's telephone list based on the inmate's individual situation,
e.g., size of family.
(1) During the admission and orientation process, an inmate who
chooses to have telephone privileges shall prepare a proposed telephone
list. At the time of submission, the inmate shall acknowledge that, to
the best of the inmate's knowledge, the person or persons on the list
are agreeable to receiving the inmate's telephone call and that the
proposed calls are to be made for a purpose allowable under Bureau
policy or institution guidelines.
(2) Except as provided in paragraph (a)(3) of this section,
telephone numbers requested by an inmate will ordinarily be placed on
the inmate's telephone list. When an inmate requests the placement of
numbers for persons other than for immediate family or those persons
already approved for the inmate's visiting list, staff ordinarily will
notify those persons in writing that their numbers have been placed on
the inmate's telephone list. The notice advises the recipient that the
recipient's number will be removed from the list if the recipient makes
a written request to the institution, or upon the written request of
the inmate, or as provided in paragraph (a)(3) of this section.
(3) The Associate Warden may deny placement of a telephone number
on an inmate's telephone list if the Associate Warden determines that
there is a threat to institution security or good order, or a threat to
the public. Any disapproval must be documented in writing to both the
inmate and the proposed recipient. As with concerns about any
correctional issue, including any portion of these telephone
regulations, an inmate may appeal the denial through the administrative
remedy procedure (see 28 CFR part 542). The Associate Warden will
notify the denied recipient that he or she may appeal the denial by
writing to the Warden within 15 days of the receipt of the denial.
(b) Telephone list update. Each Warden shall establish procedures
to allow an inmate the opportunity to submit telephone list changes on
at least a quarterly basis.
(c) Telephone access codes. An inmate may not possess another
inmate's telephone access code number. An inmate may not give his or
her telephone access code number to another inmate, and is to report a
compromised telephone access code number immediately to unit staff.
(d) Placement and duration of telephone call. The placement and
duration of any telephone call is subject to availability of inmate
funds. Ordinarily, an inmate who has sufficient funds is allowed at
least three minutes for a telephone call. The Warden may limit the
maximum length of telephone calling based on the situation at that
institution (e.g., institution population or usage demand).
(e) Exception. The Warden may allow the placement of collect calls
for good cause. Examples of good cause include, but are not limited to,
inmates who are new arrivals to the institution, including new
commitments and transfers; inmates confined at Metropolitan
Correctional Centers, Metropolitan Detention Centers, or Federal
Detention Centers; pretrial inmates; inmates in holdover status;
inmates who are without funds (see Sec. 540.105(b)); and in cases of
family emergencies.
5. Newly designated Sec. 540.105 is revised to read as follows:
Sec. 540.105 Expenses of inmate telephone use.
(a) An inmate is responsible for the expenses of inmate telephone
use. Such expenses may include a fee for replacement of an inmate's
telephone access code that is used in an institution which has
implemented debit billing for inmate telephone calls. Each inmate is
responsible for staying aware of his or her account balance through the
automated process provided by the system. Third party billing and
electronic transfer of a call to a third party are prohibited.
(b) The Warden shall provide at least one collect call each month
for an inmate who is without funds. An inmate without funds is defined
as an inmate who has not had a trust fund account balance of $6.00 for
the past 30 days. The Warden may increase the number of collect calls
based upon local institution conditions (e.g., institution population,
staff resources, and usage demand). To prevent abuses of this provision
(e.g., inmate shows a pattern of depleting his or her commissary funds
prior to placing collect calls), the Warden may impose restrictions on
the provisions of this paragraph (b).
(c) The Warden shall limit the telephone privileges (collect and
debit billed calls) of an inmate who has refused to participate in the
Inmate Financial Responsibility Program (IFRP) as specified in 28 CFR
part 545. (Effective date of this paragraph (Sec. 540.105(c)) is
delayed until January 3, 1995.)
(d) The Warden may direct the government to bear the expense of
inmate telephone use or allow a call to be made collect under
compelling circumstances such as when an inmate has lost contact with
his family or has a family emergency.
PART 545--WORK AND COMPENSATION
6. The authority citation for 28 CFR part 545 is revised to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3572, 3621, 3622,
3624, 3663, 4001, 4042, 4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987), 4126, 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.
7. In Sec. 545.11, the following concluding sentences are added to
introductory paragraph (b) and paragraph (d)(10) is added to read as
follows:
Sec. 545.11 Procedures.
* * * * *
(b) * * * In developing an inmate's financial plan, the unit team
shall exclude from its assessment $50 a month deposited into the
inmate's trust fund account. This $50 exemption shall be calculated
after subtracting from the trust fund account the inmate's IFRP minimum
payment schedule for UNICOR or non-UNICOR work assignments, set forth
below in paragraph (b)(1) and (b)(2) of this section. This $50.00 is
excluded to allow the inmate the opportunity to better maintain
telephone communication under the Inmate Telephone System (ITS).
* * * * *
(d) * * *
(10) The inmate will be allowed to place no more than one telephone
call every month, as provided in 28 CFR 540.100(b). Any exception to
this provision requires approval of the Warden, and is to be based on
compelling circumstances. (Effective date of this paragraph
(Sec. 545.11(d)(10)) is delayed until January 3, 1995.)
Dated: March 30, 1994.
Wade B. Houk,
Acting Director, Bureau of Prisons.
[FR Doc. 94-8008 Filed 4-1-94; 8:45 am]
BILLING CODE 4410-05-P