Video Visiting and Telephone Calls Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 37335-37337 [2020-13004]

Agencies

• Department of Justice
• Bureau of Prisons

[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Rules and Regulations]
[Pages 37335-37337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13004]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 540

[Docket No. BOP-1177I]
RIN 1120-AB77


Video Visiting and Telephone Calls Under the Coronavirus Aid, 
Relief, and Economic Security (CARES) Act

AGENCY: Bureau of Prisons, Department of Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Prisons amends its regulations to provide 
inmates in federal custody with the opportunity for free video-
teleconferencing and telephone usage during the national emergency with 
respect to Coronavirus Disease 2019.

DATES: This rule is effective June 22, 2020.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 353-8248.

SUPPLEMENTARY INFORMATION: On March 13, 2020, the President of the 
United States declared that a national emergency existed with respect 
to the outbreak of the novel coronavirus, SARS-CoV-2, known as 
Coronavirus Disease 2019 (COVID-19). Proclamation 9994 of March 13, 
2020, 85 FR 15337 (Mar. 18, 2020), available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. In the Coronavirus Aid, Relief, and Economic Security 
(CARES) Act, Congress provided that, during the emergency period 
beginning on the date the President declared a national emergency with 
respect to COVID-19 and ending on the date 30 days after the date on 
which the national emergency declaration terminates, if the Attorney 
General finds that emergency conditions will materially affect the 
functioning of the Bureau of Prisons (Bureau), the Director of the 
Bureau shall promulgate a regulation regarding the ability of inmates 
to conduct visitation through video teleconferencing and by phone, free 
of charge to inmates. See CARES Act, Public Law 116-136, Sec.  
12003(c)(1), 134 Stat 281, 618 (2020) [HR 748].
    On April 6, 2020, the Attorney General authorized the Bureau of 
Prisons to exercise this authority under the CARES Act. The CARES Act 
also exempted these regulations from the requirement of public notice 
and comment in the Administrative Procedure Act, 5 U.S.C. 553. See id. 
Sec.  12003(c)(2).
    The final rule amends Title 28 of the Code of Federal Regulations, 
part 540, to add new Sec.  540.106, Video Visiting and Telephone Calls 
Under the CARES Act. Section 540.106 establishes that during the 
covered emergency period, when the Attorney General determines that 
emergency conditions will materially affect the functioning of the 
Bureau of Prisons, the Bureau may, on a case-by-case basis, authorize 
inmates to conduct visitation through video teleconferencing and 
telephonically, free of charge to inmates, notwithstanding provisions 
in part 540 to the contrary.
    As a general matter, the Attorney General has authorized the 
Director of the Bureau of Prisons to exercise or perform any of the 
authority, functions, or duties conferred or imposed upon the Attorney 
General by laws relating to the commitment, control, or treatment of 
persons charged with or convicted of offenses against the United 
States. See 28 CFR 0.96.
    The final rule also indicates that access to video and telephone 
visitation will only occur consistent with logistical and security 
provisions in this

[[Page 37336]]

subpart to ensure Bureau safety, security and good order and protection 
of the public, and may be modified, terminated, or reinstated during 
the emergency period based upon a determination by the Director, as 
designee of the Attorney General, regarding the level of material 
effect that emergency conditions continue to have on Bureau of Prisons 
functions. Further, misuse of Bureau systems or technology may result 
in communication restrictions and/or disciplinary action under 28 CFR 
part 541, and inmates are advised that they may challenge the Bureau's 
decisions under this section through the Bureau's administrative remedy 
program under 28 CFR part 542.

Regulatory Analyses

Executive Orders 12866, 13563, and 13771

    This final rule has been drafted and reviewed in accordance with 
Executive Orders 12866, 13563, and 13771. This final rule is not a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, it was not reviewed by OMB.
    By way of background, the Bureau manages its own inmate telephone 
system (ITS). There are three components that make up the system and 
currently each has a different vendor: One provides software that 
facilitates the call processing and billing of the call; a second is 
the call carrier that transmits/facilitates the voice over internet 
protocol (VOIP) call outside the prison; and a third provides the 
software that maintains the inmate's account, digital call recording 
storage, and security settings.
    The Bureau provides inmates with the option of placing direct dial; 
collect; and prepaid collect telephone calls via the ITS. Inmates 
housed in Bureau facilities normally pay the following per minute rates 
for direct dial telephone calls to their called parties: Direct Dial--
Local: $0.06; Direct Dial--Long Distance: $0.21; Direct Dial--Canada: 
$0.35; Direct Dial--Mexico: $0.55; and Direct Dial--International: 
$0.99. If inmates place collect or prepaid collect calls, the called 
party will be charged applicable rates (not direct dial rates). Inmates 
at those facilties that provide video visitation normally pay a rate of 
$6.00 for a 25 minute video session.
    The volume of calls and video sessions by prisoners normally 
fluctuates during non-emergency situtations. Inmates are ordinarily 
limited to calling 300 minutes per month, but the Bureau raised the 
limit to 500 minutes on March 13, 2020 in recognition of the impact of 
the COVID emergency to facilitate inmates' communiation with their 
families. Furthermore, notwithstanding the preparation of this rule, 
the Bureau implemented no-cost calling for inmates on April 9, 2020, 
for the same reason. Based on recent inmate usage, the Bureau projects 
that free-of-charge phone calls for inmates will cost the Bureau 
approximately $7 million per month during the COVID emergency and video 
sessions will cost approximately $170,000 per month. These costs are 
being covered out of current Bureau of Prisons appropriations. The 
total cost of the regulation is uncertain, however, because the length 
of the emergency and its impact on Bureau operations is not 
predictable.
    Even with that uncertainty, the expected benefits of the rule 
outweigh the cost for several reasons. First, the provision of free 
telephone and video visitation is a compassionate response to the COVID 
emergency. Enabling free visitation by alernatives means that prisoners 
are able to maintain contact with their families during the COVID 
emergency. Second, maintaining some form of visitation is a means of 
ensuring good order and discipline during the emergency, which benefits 
the safety of prisoners and staff. Third, expending resources on video 
and telephone visitation benefits the health of prisoners and staff, as 
well as public health overall, during the emergency by limiting 
physical contact that could spread COVID. The Bureau has not identified 
any specific cost savings from the rule.

Executive Order 13132

    This regulation will not have substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, under Executive Order 13132, 
this regulation does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Department of Justice certifies that this rule will not have a 
significant economic impact upon a substantial number of small entities 
because it pertains to the functioning of the BUREAU and funds 
authorized and appropriated for that purpose by Congress.

Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by State, local 
and tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Congressional Review Act

    This regulation is not a major rule as defined by the Congressional 
Review Act, 5 U.S.C. 804. This regulation will not result in an annual 
effect on the economy of $100,000,000 or more; a major increase in 
costs or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.

List of Subjects in 28 CFR Part 540

    Prisoners.

Michael D. Carvajal,
Director, Federal Bureau of Prisons.

    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director of the 
Bureau of Prisons in 28 CFR 0.96, 28 CFR part 540 is amended as 
follows:

0
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, 3621, 3622, 
3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 
12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 
509, 510; Coronavirus Aid, Relief, and Economic Security Act, Sec. 
12003(c).


0
2. In subpart I, add Sec.  540.106 to read as follows:


Sec.  540.106  Video visiting and telephone calls under the Coronavirus 
Aid, Relief, and Economic Security (CARES) Act.

    (a) During the ``covered emergency period'' as defined by the CARES 
Act with respect to the coronavirus disease (COVID-19), when the 
Attorney General determines that emergency conditions will materially 
affect the functioning of the Bureau of Prisons (Bureau), the Bureau 
may, on a case-by-case basis, authorize inmates to conduct visitation 
through video teleconferencing and telephonically, free of charge to 
inmates, notwithstanding provisions in part 540 to the contrary.
    (b) Access to video and telephone visitation will only occur 
consistent with logistical and security provisions in this subpart to 
ensure Bureau safety,

[[Page 37337]]

security and good order and protection of the public.
    (c) Access to video and telephone visitation under this section may 
be modified, terminated, or reinstated during the emergency period 
based upon a determination by the Director, as designee of the Attorney 
General, regarding the level of material effect that emergency 
conditions continue to have on Bureau functions.
    (d) Misuse of Bureau systems or technology may result in 
communication restrictions and/or disciplinary action under 28 CFR part 
541.
    (e) Inmates may challenge the Bureau's decisions under this section 
through the Bureau's administrative remedy program under 28 CFR part 
542.

[FR Doc. 2020-13004 Filed 6-19-20; 8:45 am]
BILLING CODE 4410-05-P