[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Rules and Regulations]
[Pages 13902-13904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6287]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 40
[AG Order No. 1955-95]
Standards for Inmate Grievance Procedures
AGENCY: Department of Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule modifies the standards for state prison
inmate grievance procedures to allow for certification of a procedure
which, if not in substantial compliance with minimum standards
promulgated by the Attorney General, nevertheless is found by the
Attorney General to be otherwise fair and effective. This interim rule
also adjusts the time limits for processing grievances to help ensure
final disposition within the period of time allowed for judicial
continuance. These amendments are necessary to implement new statutory
authority .
DATES: This interim rule is effective March 15, 1995; comments must be
submitted on or before May 15, 1995.
ADDRESSES: Please submit comments to Office of General Counsel, Bureau
of Prisons, HOLC room 709, 320 First Street NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT:
John Megathlin, Administrator, National Inmate Appeals, Federal Bureau
of Prisons, 320 First Street NW., Washington, DC 20534, telephone (202)
514-6165.
SUPPLEMENTARY INFORMATION:
Background
In an effort to reduce unnecessary prisoner litigation, Congress
enacted the Civil Rights of Institutionalized Persons Act (42 U.S.C.
1997). Section 7 of the Act, 42 U.S.C. 1997e, adopted a qualified
exhaustion requirement for civil rights actions filed by state
prisoners in federal district court under 42 U.S.C. 1983. That section
allowed the court, if appropriate and in the interests of justice, to
continue proceedings for a period of 90 days in order to compel
prisoners to exhaust local administrative prison grievance procedures.
Exhaustion could not be required unless the Attorney General had
certified or the court had determined that such administrative
grievance procedure was in substantial compliance with the minimum
standards promulgated by the Attorney General pursuant to 42 U.S.C.
1997e(b).
The Violent Crime Control and Law Enforcement Act of 1994 (Pub. L.
103-322) amended 42 U.S.C. 1997e. As amended, 42 U.S.C. 1997e now
allows the court to continue proceedings for up to 180 days. In
addition, exhaustion may be required if the Attorney General certifies
or the court determines that the administrative grievance procedure in
question, even if it is not in compliance with the minimum standards
promulgated by the Attorney General, is ``otherwise fair and
effective.''
This interim rule accordingly revises Sec. 40.11 in 28 CFR part 40
in order to address the evaluation of an applicant's submission under
the ``otherwise fair and effective'' standard as well as under the
existing standards. Sections 40.14, 40.15, 40.16, 40.18 (a) and (b),
40.19(a), and 40.22 are amended to include reference to determination
that a grievance procedure is otherwise fair and effective.
In addition, Sec. 40.7(e) is amended to specify that in all
instances grievances must be processed from initiation to final
disposition within 180 days, including any extensions. Formerly,
paragraph (e) had required final disposition within 90 days, excluding
any extension of time agreed to in writing by the grievant. This
amendment is intended to provide applicants the flexibility to set time
limits for the final disposition of grievances within the extended
period of time allowed under newly revised 42 U.S.C. 1997e(a)(1). As
revised, paragraph (e) no longer requires written consent from the
grievant for an extension of time on a response. However, notification
to the grievant of an extension of time for a response at any stage of
the process remains necessary in order to require exhaustion of that
stage.
Regulatory Process Matters
The Department of Justice's implementation of this rule as an
interim rule, with provisions for post-promulgation public comment, is
based on the ``good cause'' exception of 5 U.S.C. 553(d)(3). This rule
is necessary to conform existing regulations to recent statutory
amendments. Immediate implementation will allow the Attorney General to
use without undue delay the statutory ``otherwise fair and effective''
standard in consideration of current applications by States or local
jurisdictions for certification, and consequently reduce regulatory
burdens on these government entities.
The Attorney General has determined that this rule is not a
significant regulatory action under Executive Order 12866, section
3(f), and accordingly this rule was not reviewed by the Office of
Management and Budget. This rule does not have federalism implications
warranting the preparation of a Federalism Assessment in accordance
with section 6 of Executive Order 12612. The Attorney General, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and by approving it certifies that this
regulation will not have a significant economic impact on a substantial
number of small entities.
List of Subjects in 28 CFR Part 40
Administrative practice and procedure, Civil rights, Inmate
grievance procedures, Prisoners.
Accordingly, by virtue of the authority vested in the Attorney
General by law, including 5 U.S.C. 301, 28 U.S.C. 509, and 42 U.S.C.
1997e, part 40 of Chapter I of title 28 of the Code of Federal
Regulations is amended as follows:
PART 40--STANDARDS FOR INMATE GRIEVANCE PROCEDURES
1. The authority citation for part 40 continues to read as follows:
Authority: 42 U.S.C. 1997e.
2. In Sec. 40.7, paragraph (e) is revised to read as follows:
Sec. 40.7 Operation and decision.
* * * * *
(e) Fixed time limits. Responses shall be made within fixed time
limits at each level of decision. Time limits may vary between
institutions, but expeditious processing of grievances at each level of
decision is essential to prevent grievance from becoming moot. Unless
the grievant has been notified of an extension of time for a response,
expiration of a time limit at any stage of the process shall entitle
the grievant to move to the next stage of the process. In all instances
grievances must be processed from initiation to final
[[Page 13903]] disposition within 180 days, inclusive of any
extensions.
* * * * *
3. Section 40.11 is revised to read as follows:
Sec. 40.11 Submissions by applicant.
(a) Written statement. An application for certification of a
grievance procedure under the Act shall be submitted to the Office of
the Attorney General, U.S. Department of Justice, Main Justice
Building, Washington, DC 20530, and shall include a written statement
describing the grievance procedure, a brief description of the
institution or institutions covered by the procedure, and accompanying
plans for or evidence of implementation in each institution.
(b) Evidence of compliance with established standards. An applicant
seeking certification of a grievance procedure as being in substantial
compliance with the standards promulgated herein should submit evidence
of compliance with those standards, including the following
information:
(1) Instructional materials. A copy of the instructional materials
for inmates and employees regarding use of the grievance procedure
together with a description of the manner in which such materials are
distributed, a description of the oral explanation of the grievance
procedure, including the circumstances under which it is delivered, and
a description of the training, if any, provided to employees and
inmates in the skills necessary to operate the grievance procedure.
(2) Form. A copy of the form used by inmates to initiate a
grievance and to obtain review of the disposition of a grievance.
(3) Information regarding past compliance. For a grievance
procedure that has operated for more than one year at the time of the
application, the applicant shall submit information regarding the
number and types of grievances filed over the preceding year, the
disposition of the grievances with sample responses from each level of
decision, the remedies granted, evidence of compliance with time limits
at each level of decision, and a description of the role of inmates and
employees in the formulation, implementation, and operation of the
grievance procedure.
(4) Plan for collecting information. For a grievance procedure that
has operated for less than one year at the time of the application, the
applicant shall submit a plan for collecting the information described
in paragraph (b)(3) of this section.
(5) Assurance of confidentiality. A description of the steps taken
to ensure the confidentiality of records of individual use of or
participation in the grievance procedure.
(6) Evaluation. A description of the plans for periodic evaluation
of the grievance procedure, including identification of the group,
individuals or individual who will conduct the evaluation and
identification of the person or entity not under the control of
supervision of the institution who will review the evaluation, together
with two copies of the most recent evaluation, if one has been
performed.
(c) Fair and effective procedures. The Attorney General shall also
certify a grievance procedure under the Act, even if the procedure is
not in substantial compliance with the standards promulgated herein, if
the Attorney General determines that the procedure is otherwise fair
and effective for the consideration and disposition of grievances filed
by inmates. If a grievance procedure is not in substantial compliance
with all standards herein, the applicant shall identify the aspects in
which the procedure is in substantial compliance and those in which it
is not, describe the other relevant features of the procedure, and
explain why the procedure is otherwise fair and effective.
4. Section 40.14 is revised to read as follows:
Sec. 40.14 Conditional certification.
If, in the judgment of the Attorney General, a grievance procedure
that has been in existence less than one year is at the time of
application in substantial compliance with the standards promulgated
herein or is otherwise fair and effective, the Attorney General shall
grant conditional certification for one year or until the applicant
satisfies the requirements of Sec. 40.15, whichever period is shorter.
5. Section 40.15 is revised to read as follows:
Sec. 40.15 Full certification.
If, in the judgment of the Attorney General, a grievance procedure
that has been in existence longer than one year at the time of
application is in substantial compliance with the standards promulgated
herein or is otherwise fair and effective, the Attorney General shall
grant full certification. Such certification shall remain in effect
unless and until the Attorney General finds reasonable cause to believe
that the grievance procedure is no longer in substantial compliance
with the minimum standards or is no longer fair and effective, and so
notifies the applicant in writing.
6. Section 40.16 is revised to read as follows:
Sec. 40.16 Denial of certification.
If the Attorney General finds that the grievance procedure is not
in substantial compliance with the standards promulgated herein or is
no longer fair and effective, the Attorney General shall deny
certification and inform the applicant in writing of the area or areas
in which the grievance procedure or the application is deemed
inadequate.
7. In Sec. 40.18, paragraphs (a) and (b) are revised to read as
follows:
Sec. 40.18 Suspension of certification.
(a) Reasonable belief of non-compliance. If the Attorney General
has reasonable grounds to believe that a previously certified grievance
procedure may no longer be in substantial compliance with the minimum
standards or may no longer be fair and effective, the Attorney General
shall suspend certification. The suspension shall continue until such
time as the deficiency is corrected, in which case certification shall
be reinstated, or until the Attorney General determines that
substantial compliance no longer exists or that the procedure is no
longer fair and effective, in which case, except as provided in
paragraph (b) of this section, the Attorney General shall withdraw
certification pursuant to Sec. 40.19 of this part.
(b) Defect may be readily remedied; good faith effort. If the
Attorney General determines that a grievance procedure is no longer in
substantial compliance with the minimum standards or is no longer fair
and effective, but has reason to believe that the defect may be readily
corrected and that good faith efforts are underway to correct it, the
Attorney General may suspend certification until the grievance
procedure returns to compliance with the minimum standards or is
otherwise fair and effective.
* * * * *
8. In Sec. 40.19, paragraph (a) is revised to read as follows:
Sec. 40.19 Withdrawal of certification.
(a) Finding of non-compliance. If the Attorney General finds that a
grievance procedure is no longer in substantial compliance with the
minimum standards or is no longer otherwise fair and effective, the
Attorney General shall withdraw certification, unless the Attorney
General concludes that suspension of certification under Sec. 40.18(b)
of this part is appropriate.
* * * * * [[Page 13904]]
9. Section 40.22 is revised to read as follows:
Sec. 40.22 Significance of certification.
Certification of a grievance procedure by the Attorney General
shall signify only that on the basis of the information submitted, the
Attorney General believes the grievance procedure is in substantial
compliance with the minimum standards or is otherwise fair and
effective. Certification shall not indicate approval of the use or
application of the grievance procedure in a particular case.
Dated: March 3, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-6287 Filed 3-14-95; 8:45 am]
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