[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





_______________________________________________________________________



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