[Federal Register Volume 61, Number 1 (Tuesday, January 2, 1996)]
[Rules and Regulations]
[Pages 86-90]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31496]
[[Page 85]]
_______________________________________________________________________
Part II
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Parts 540, 542, and 545
Inmate Control, Custody, Care, etc.; Rules and Proposed Rule
Federal Register / Vol. 61, No. 1 / Tuesday, January 2, 1996 / Rules
and Regulations
[[Page 86]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 542
[BOP-1014-F]
RIN 1120-AA20
Administrative Remedy Program
AGENCY: Federal Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons is revising its
regulations on the Administrative Remedy Program. These regulations
describe the process through which inmates may seek formal review of
any issue related to their confinement. The changes are deemed
necessary in order to attend to increased numbers of remedy requests
occasioned by the continued growth of the inmate population. Specific
procedural changes include increases in the time limits set for inmate
filing of requests and for Bureau responses; additional specifications
for the provision of assistance to inmates; and increased access to
Administrative Remedy indexes.
EFFECTIVE DATE: February 5, 1996.
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, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons (Bureau) is amending
its regulations on the Administrative Remedy Procedure for Inmates. A
proposed rule on this subject was published in the Federal Register on
October 3, 1994 (59 FR 50179). The Bureau received comment from six
individuals. In general, the comments expressed dissatisfaction in
varying degrees on the following points: informal resolution, time
limits, handling of appeals and responses by staff, and administrative
matters (such as the posting of the proposed rule at the institution).
A summary of the comments and the Bureau's responses follow.
The proposed rule had included increased time limits for submission
of an initial remedy request by an inmate (20 calendar days following
the date on which the basis for the request had occurred, rather than
the 15 calendar days then currently specified). The proposed rule also
increased the time limits for agency responses at the institution level
(20 rather than 15 calendar days) and at the Central Office level (40
rather than 30 calendar days).
There were no objections to the increased time limit for submission
of an initial remedy request by an inmate. Several commenters, however,
objected to the extension of the time limits for Bureau response,
stating these were too long, or were ``slanted completely in favor of
the BOP.''
Commenters recommended a variety of procedural changes intended to
extend the effective filing time for submission of inmate appeals by
linking the filing time to an event other than the date of the Bureau's
response. For example, commenters suggested that the filing time should
exclude any time past the date the appeal is handed over to the
institution mailroom, or the filing time for an appeal should not begin
until the inmate has actually received a Bureau response.
The Bureau believes it is not currently practicable to date stamp
outgoing mail or to verify the date inmates receive Bureau responses.
The proposed filing times include adequate adjustment for mail time.
The Bureau also believes that the extended response times for its staff
are realistic and reasonable. Good reason exists for the different
filing time limits. While the inmate is responsible for preparing his
or her individual request(s) or appeal(s), Bureau staff must prepare
responses to whatever requests or appeals have been submitted from the
inmate population. Furthermore, in those instances where staff need
more time to respond to an appeal, staff may currently claim an
extension as allowed by the regulations (see Sec. 542.14). In claiming
the extension, staff notify the inmate in writing. Increasing the
initial time limit for response should reduce the necessity for
claiming extensions. In either case, the actual time taken to respond
would likely be the same. With the increased time limit, staff would
spend less time completing the administrative paperwork necessary for
claiming extensions.
Some commenters expressed the belief that the mandatory filing of a
complaint initially at the institutional level was cumbersome and
unnecessary. One commenter recommended that an inmate be allowed to
make an appeal ``directly to the level of management that has
jurisdiction and the authority to make the decision.''
The Bureau believes that such amendment is not necessary. The
principle underlying the administrative remedy procedure is that the
resolution of problems can be remedied at the lowest possible level. If
informal resolution is successful, the formal administrative remedy
procedure would not be necessary. Moreover, those few issues that can
only be remedied at certain levels are permitted, per policy, to go
directly to that level. Similarly, responses to emergency appeals are
expedited. The administrative remedy procedure typically is used to
address questions regarding the application of policy to individual
inmates. Provisions for appeal help ensure consistency in application
and can also serve to measure the adequacy of policy. The primary
vehicle for inmate participation in the general formulation of Bureau
policy remains through the rulemaking process (for example, through
comment on the October 3, 1994 proposed rule).
Some commenters recommended that either a receipt for a filed
complaint be given by the correctional counselor who ``accepts'' the
complaint or that the inmate be allowed to file the initial request
with the institution's administrative remedy coordinator. These
commenters expressed the concern that extensive delays may occur before
the counselor forwards the administrative remedy to the institution's
administrative remedy coordinator. The Bureau believes that no change
is necessary, as the counselor is responsible for forwarding the
administrative remedy to the appropriate staff in a timely manner and
internal instructions to staff require that this occur ordinarily no
later than the next business day.
Two commenters objected to the form of receipt acknowledgements or
responses returned to the inmate. One of these commenters expressed
concern that because the receipt acknowledgements are not signed, these
receipts do not prove that the appeals ever left the institution. In
response, the Bureau notes that receipts from the regional and central
offices are generated electronically from those offices. Therefore, a
receipt acknowledgement indicates that the administrative remedy
reached its intended destination.
The second commenter objected to the provisions in
Sec. 542.11(a)(4) relating to the delegation of signatory authority,
which had been previously issued as an administrative amendment. This
commenter stated that, at a minimum, the regulation should require that
the name and title of the person signing the response be typed below
the signature rather than have the person sign ``for'' the official as
is the Bureau's practice in this administrative detail. The commenter
presumably believes this change is important in the pursuit of further
judicial action involving an
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inmate's complaint. The Bureau believes its standard procedures for the
exercise of delegated authority is adequate and no further amendment is
necessary in this matter.
One commenter objected to the omission of a requirement that staff
responses be in good faith, honest, and straightforward, as is required
for inmate submissions (see Sec. 542.11(b)). There is no necessity to
address this matter in these regulations because Bureau staff are
trained professionals governed by the Standards of Conduct for Bureau
employees, which are sufficient to support the integrity of staff
responses.
One commenter objected to a variety of specific administrative
procedures. Section 542.14(c)(2) states that the inmate shall place a
single complaint or a reasonable number of closely related issues on
the appropriate form. This is intended to facilitate indexing of remedy
requests and to simplify the resolution process by presenting remedy
requests as discrete matters. The commenter claimed that inmate access
to forms at one institution was limited by requiring one form to be
filled out and submitted before staff would issue another to the same
inmate. We note that this institution practice does not necessarily
limit access (i.e., it merely requires the inmate to follow through on
one complaint before starting another). Nevertheless, because the
Bureau does not wish to encourage such a perception, the Bureau is
issuing internal instructions to staff advising against such
institutional administrative practice.
This same commenter also objected to limiting the length of inmate
complaints by only allowing one additional page per form. The Bureau
believes that limiting additions to one page is useful and reasonable.
This emphasis on brevity along with the above-mentioned requirement
limiting the inmate to the presentation of a single complaint or a
reasonable number of closely related issues is intended to encourage
inmates to submit their concerns in a straightforward manner. The
commenter also objected to requirements in Sec. 542.14(c)(3) regarding
the submission of exhibits with a request. The commenter suggested that
the provision was ambiguous as to the number of required copies at
different stages of the remedy appeals process. The Bureau's procedure
is to require only one copy of an exhibit with the request. If the
inmate appeals a response, the inmate is responsible for furnishing a
copy of the exhibit with the appeal along with copies of the
previously-submitted complaints.
One commentator objected to the provision in Sec. 542.17 allowing
the administrative remedy coordinator at any level to reject a request
or appeal. This commenter, presumably focusing on an example at the
institution level, stated that only the Warden may sign responses and
consequently should be the only one to reject the request or appeal.
The Bureau wishes to note that the very purpose of Sec. 542.17 is to
provide the administrative remedy coordinator with this authority.
Paragraph (b) of this section provides the inmate with the opportunity
to correct the defects, when possible, so that the matter can be
resubmitted.
Three commenters raised questions about the lack of detail provided
in these regulations for the informal resolution of complaints. Two
commenters objected to the lack of a specified time limit for informal
resolution. One commenter recommended 48 hours as a reasonable time
period for that purpose. Another commenter stated that paperwork
associated with informal resolution at one particular institution
appeared to be duplicative of the paperwork generated for an initial
request submitted after an adverse decision on the informal resolution.
In response, the Bureau notes that by its very definition,
procedures for informal resolution should not be formalized. The
informal resolution policy is not explicitly detailed in these
regulations in order to preserve maximum flexibility for institution
staff in attempting to resolve complaints. As for the particular
informal resolution procedures at particular institutions, the Bureau
wishes to preserve the Warden's discretion in formulating these
procedures and adds language to the rule providing for the exercise of
the Warden's discretion.
In response to the concerns over the lack of a specified time limit
for informal resolution, the Bureau has revised the provisions in
Sec. 542.14(a) to include informal resolution under the deadline for
the submission of an initial filing. This is intended to encourage
quick informal resolution. Because a lengthy period of time for
attempted informal resolution constitutes a valid reason for the
granting of an extension in filing time, including informal resolution
under this deadline should not unduly impair the inmate's ability to
file the initial request in instances where the informal resolution
attempt has failed.
Two commenters raised concerns about the posting of the proposed
rule changes at one particular Bureau institution, stating that their
access to the proposed rule, and consequently their ability to timely
comment on it, were intentionally hindered. We have been assured by
institution staff that pursuant to Bureau policy, the proposed rule was
posted in the inmate law library and was also maintained by unit case
managers. Inmates at this institution were advised through postings in
their housing units that they could review the proposed rule either in
the inmate law library or through a request to the case manager. The
two commenters stated that their requests to review the proposed rule
were not answered in a timely fashion. The Bureau believes that the
institution's posting procedures do not constitute intentional
hinderance to public comment. The two requests in question came from
inmates in the same housing areas, which suggests that any problem was
of a local, not systemic, nature. In addition, the proposed rule was
also available at the institution's law library. In any event, the
Bureau has considered these comments in finalizing these regulations.
One commenter, expressing general dissatisfaction with Bureau
regulations, stated that Bureau regulations were so poorly written that
two different institutions would interpret them differently on the same
day to fit their particular desire. It is the Bureau's intent that the
Administrative Remedy Program helps to ensure the consistent
application of Bureau rules and policies by allowing for hierarchial
review of inmate complaints.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. 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 Part 542
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), it is proposed to amend part 542
in subchapter C of 28 CFR, chapter V as set forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
1. 28 CFR part 542 is revised to read as follows:
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PART 542--ADMINISTRATIVE REMEDY
Subpart A--[Reserved]
Subpart B--Administrative Remedy Program
Sec.
542.10 Purpose and scope.
542.11 Responsibility.
542.12 Excluded matters.
542.13 Informal resolution.
542.14 Initial filing.
542.15 Appeals.
542.16 Assistance.
542.17 Resubmission.
542.18 Response time.
542.19 Access to indexes and responses.
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to
offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28
CFR 0.95-0.99.
Subpart A--[Reserved]
Subpart B--Administrative Remedy Program
Sec. 542.10 Purpose and scope.
The Administrative Remedy Program is a process through which
inmates may seek formal review of an issue which relates to any aspect
of their confinement, except as excluded in Sec. 542.12, if less formal
procedures have not resolved the matter. This Program applies to all
inmates confined in institutions operated by the Bureau of Prisons, to
inmates designated to contract Community Corrections Centers (CCCs)
under Bureau of Prisons' responsibility, and to former inmates for
issues that arose during their confinement, but does not apply to
inmates confined in other non-federal facilities.
Sec. 542.11 Responsibility.
(a) The Community Corrections Manager (CCM), Warden, Regional
Director, and General Counsel are responsible for the implementation
and operation of the Administrative Remedy Program at the Community
Corrections Center (CCC), institution, regional and Central Office
levels, respectively, and shall:
(1) Establish procedures for receiving, recording, reviewing,
investigating, and responding to Administrative Remedy Requests
(Requests) or Appeals (Appeals) submitted by an inmate;
(2) Acknowledge receipt of a Request or Appeal by returning a
receipt to the inmate;
(3) Conduct an investigation into each Request or Appeal;
(4) Respond to and sign all Requests or Appeals filed at their
levels. At the regional level, signatory authority may be delegated to
the Deputy Regional Director. At the Central Office level, signatory
authority may be delegated to the National Inmate Appeals
Administrator. Signatory authority extends to staff designated as
acting in the capacities specified in this Sec. 542.11, but may not be
further delegated without the written approval of the General Counsel.
(b) Inmates have the responsibility to use this Program in good
faith and in an honest and straightforward manner.
Sec. 542.12 Excluded matters.
(a) An inmate may not use this Program to submit a Request or
Appeal on behalf of another inmate. This program is intended to address
concerns that are personal to the inmate making the Request or Appeal,
but shall not prevent an inmate from obtaining assistance in preparing
a Request or Appeal, as provided in Sec. 542.16 of this part.
(b) Requests or Appeals will not be accepted under the
Administrative Remedy Program for claims for which other administrative
procedures have been established, including tort claims, Inmate
Accident Compensation claims, and Freedom of Information or Privacy Act
requests. Staff shall inform the inmate in writing of the appropriate
administrative procedure if the Request or Appeal is not acceptable
under the Administrative Remedy Program.
Sec. 542.13 Informal resolution.
(a) Informal Resolution. Except as provided in Sec. 542.13(b), an
inmate shall first present an issue of concern informally to staff, and
staff shall attempt to informally resolve the issue before an inmate
submits a Request for Administrative Remedy. Each Warden shall
establish procedures to allow for the informal resolution of inmate
complaints.
(b) Exceptions. Inmates in CCCs are not required to attempt
informal resolution. An informal resolution attempt is not required
prior to submission to the Regional or Central Office as provided for
in Sec. 542.14(d) of this part. An informal resolution attempt may be
waived in individual cases at the Warden or institution Administrative
Remedy Coordinator's discretion when the inmate demonstrates an
acceptable reason for bypassing informal resolution.
Sec. 542.14 Initial filing.
(a) Submission. The deadline for completion of informal resolution
and submission of a formal written Administrative Remedy Request, on
the appropriate form (BP-9), is 20 calendar days following the date on
which the basis for the Request occurred.
(b) Extension. Where the inmate demonstrates a valid reason for
delay, an extension in filing time may be allowed. In general, valid
reason for delay means a situation which prevented the inmate from
submitting the request within the established time frame. Valid reasons
for delay include the following: an extended period in-transit during
which the inmate was separated from documents needed to prepare the
Request or Appeal; an extended period of time during which the inmate
was physically incapable of preparing a Request or Appeal; an unusually
long period taken for informal resolution attempts; indication by an
inmate, verified by staff, that a response to the inmate's request for
copies of dispositions requested under Sec. 542.19 of this part was
delayed.
(c) Form.
(1) The inmate shall obtain the appropriate form from CCC staff or
institution staff (ordinarily, the correctional counselor).
(2) The inmate shall place a single complaint or a reasonable
number of closely related issues on the form. If the inmate includes on
a single form multiple unrelated issues, the submission shall be
rejected and returned without response, and the inmate shall be advised
to use a separate form for each unrelated issue. For DHO and UDC
appeals, each separate incident report number must be appealed on a
separate form.
(3) The inmate shall complete the form with all requested
identifying information and shall state the complaint in the space
provided on the form. If more space is needed, the inmate may use up to
one letter-size (8\1/2\'' by 11'') continuation page. The inmate must
provide an additional copy of any continuation page. The inmate must
submit one copy of supporting exhibits. Exhibits will not be returned
with the response. Because copies of exhibits must be filed for any
appeal (see Sec. 542.15(b)(3)), the inmate is encouraged to retain a
copy of all exhibits for his or her personal records.
(4) The inmate shall date and sign the Request and submit it to the
institution staff member designated to receive such Requests
(ordinarily a correctional counselor). CCC inmates may mail their
Requests to the CCM.
(d) Exceptions to Initial Filing at Institution.
(1) Sensitive Issues. If the inmate reasonably believes the issue
is sensitive and the inmate's safety or well-being would be placed in
danger if the
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Request became known at the institution, the inmate may submit the
Request directly to the appropriate Regional Director. The inmate shall
clearly mark ``Sensitive'' upon the Request and explain, in writing,
the reason for not submitting the Request at the institution. If the
Regional Administrative Remedy Coordinator agrees that the Request is
sensitive, the Request shall be accepted. Otherwise, the Request will
not be accepted, and the inmate shall be advised in writing of that
determination, without a return of the Request. The inmate may pursue
the matter by submitting an Administrative Remedy Request locally to
the Warden. The Warden shall allow a reasonable extension of time for
such a resubmission.
(2) DHO Appeals. DHO appeals shall be submitted initially to the
Regional Director for the region where the inmate is currently located.
(3) Control Unit Appeals. Appeals related to Executive Panel
Reviews of Control Unit placement shall be submitted directly to the
General Counsel.
(4) Controlled Housing Status Appeals. Appeals related to the
Regional Director's review of controlled housing status placement may
be filed directly with the General Counsel.
Sec. 542.15 Appeals.
(a) Submission. An inmate who is not satisfied with the Warden's
response may submit an Appeal on the appropriate form (BP-10) to the
appropriate Regional Director within 20 calendar days of the date the
Warden signed the response. An inmate who is not satisfied with the
Regional Director's response may submit an Appeal on the appropriate
form (BP-11) to the General Counsel within 30 calendar days of the date
the Regional Director signed the response. When the inmate demonstrates
a valid reason for delay, these time limits may be extended. Valid
reasons for delay include those situations described in Sec. 542.14(b)
of this part. Appeal to the General Counsel is the final administrative
appeal.
(b) Form.
(1) Appeals to the Regional Director shall be submitted on the form
designed for regional Appeals (BP-10) and accompanied by one complete
copy or duplicate original of the institution Request and response.
Appeals to the General Counsel shall be submitted on the form designed
for Central Office Appeals (BP-11) and accompanied by one complete copy
or duplicate original of the institution and regional filings and their
responses. Appeals shall state specifically the reason for appeal.
(2) An inmate may not raise in an Appeal issues not raised in the
lower level filings. An inmate may not combine Appeals of separate
lower level responses (different case numbers) into a single Appeal.
(3) An inmate shall complete the appropriate form with all
requested identifying information and shall state the reasons for the
Appeal in the space provided on the form. If more space is needed, the
inmate may use up to one letter-size (8\1/2\'' x 11'') continuation
page. The inmate shall provide two additional copies of any
continuation page and exhibits with the regional Appeal, and three
additional copies with an Appeal to the Central Office (the inmate is
also to provide copies of exhibits used at the prior level(s) of
appeal). The inmate shall date and sign the Appeal and mail it to the
appropriate Regional Director, if a Regional Appeal, or to the National
Inmate Appeals Administrator, Office of General Counsel, if a Central
Office Appeal (see 28 CFR part 503 for addresses of the Central Office
and Regional Offices).
Sec. 542.16 Assistance.
(a) An inmate may obtain assistance from another inmate or from
institution staff in preparing a Request or an Appeal. An inmate may
also obtain assistance from outside sources, such as family members or
attorneys. However, no person may submit a Request or Appeal on the
inmate's behalf, and obtaining assistance will not be considered a
valid reason for exceeding a time limit for submission unless the delay
was caused by staff.
(b) Wardens shall ensure that assistance is available for inmates
who are illiterate, disabled, or who are not functionally literate in
English. Such assistance includes provision of reasonable accommodation
in order for an inmate with a disability to prepare and process a
Request or an Appeal.
Sec. 542.17 Resubmission.
(a) Rejections. The Coordinator at any level (CCM, institution,
region, Central Office) may reject and return to the inmate without
response a Request or an Appeal that is written by an inmate in a
manner that is obscene or abusive, or does not meet any other
requirement of this part.
(b) Notice. When a submission is rejected, the inmate shall be
provided a written notice, signed by the Administrative Remedy
Coordinator, explaining the reason for rejection. If the defect on
which the rejection is based is correctable, the notice shall inform
the inmate of a reasonable time extension within which to correct the
defect and resubmit the Request or Appeal.
(c) Appeal of Rejections. When a Request or Appeal is rejected and
the inmate is not given an opportunity to correct the defect and
resubmit, the inmate may appeal the rejection, including a rejection on
the basis of an exception as described in Sec. 542.14(d), to the next
appeal level. The Coordinator at that level may affirm the rejection,
may direct that the submission be accepted at the lower level (either
upon the inmate's resubmission or direct return to that lower level),
or may accept the submission for filing. The inmate shall be informed
of the decision by delivery of either a receipt or rejection notice.
Sec. 542.18 Response time.
If accepted, a Request or Appeal is considered filed on the date it
is logged into the Administrative Remedy Index as received. Once filed,
response shall be made by the Warden or CCM within 20 calendar days; by
the Regional Director within 30 calendar days; and by the General
Counsel within 40 calendar days. If the Request is determined to be of
an emergency nature which threatens the inmate's immediate health or
welfare, the Warden shall respond not later than the third calendar day
after filing. If the time period for response to a Request or Appeal is
insufficient to make an appropriate decision, the time for response may
be extended once by 20 days at the institution level, 30 days at the
regional level, or 20 days at the Central Office level. Staff shall
inform the inmate of this extension in writing. Staff shall respond in
writing to all filed Requests or Appeals. If the inmate does not
receive a response within the time allotted for reply, including
extension, the inmate may consider the absence of a response to be a
denial at that level.
Sec. 542.19 Access to indexes and responses.
Inmates and members of the public may request access to
Administrative Remedy indexes and responses, for which inmate names and
Register Numbers have been removed, as indicated below. Each
institution shall make available its index, and the indexes of its
regional office and the Central Office. Each regional office shall make
available its index, the indexes of all institutions in its region, and
the index of the Central Office. The Central Office shall make
available its index and the indexes of all institutions and regional
offices. Responses may be
[[Page 90]]
requested from the location where they are maintained and must be
identified by Remedy ID number as indicated on an index. Copies of
indexes or responses may be inspected during regular office hours at
the locations indicated above, or may be purchased in accordance with
the regular fees established for copies furnished under the Freedom of
Information Act (FOIA).
[FR Doc. 95-31496 Filed 12-29-95; 8:45 am]
BILLING CODE 4410-05-P
