Administrative Remedy Program

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 542

[BOP-1014-P]

RIN 1120-AA20

Administrative Remedy Program

AGENCY: Federal Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons is proposing to revise

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 proposed changes are deemed

necessary in order to attend to increased numbers of remedy requests

occasioned by the continued growth of the inmate population. Proposed

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.

DATES: Comments due by December 2, 1994.

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 is proposing to amend

its regulations on the Administrative Remedy Program. A final rule on

this subject was published in the Federal Register on October 29, 1979

(44 FR 62250), and was amended December 27, 1979 (44 FR 76726),

November 20, 1991 (56 FR 58634), and on October 29, 1993 (58 FR 58246).

The proposed revision set forth below is the first major change to

the Bureau's Administrative Remedy Program since its adoption on

October 29, 1979. Subsequent growth of the inmate population has

resulted in an increase in the number of remedy requests filed. As a

means of effectively addressing this situation, the Bureau has

reorganized its regulation, currently entitled Administrative Remedy

Procedure for Inmates, for the sake of clarity, and is proposing

various efficiencies in the procedures for processing remedy requests.

Procedural efficiencies include making adjustments to the time

limits for filing requests by inmates and for responses by the Bureau.

The time limit for submission of an initial remedy request by an inmate

has been lengthened to 20 calendar days following the date on which the

basis for the request had occurred. Current regulations specify a 15-

day limit. The time limit for submission of an appeal to the General

Counsel has been lengthened to 30 calendar days following the date

Regional Counsel signed the response. The proposed time limits for

agency responses have also been lengthened, from 15 to 20 calendar days

at the institution level, and from 30 to 40 calendar days at the

Central Office level.

Additional revisions include additional guidelines in the following

areas: informal resolution, forms, and assistance to inmates. Also,

advances in recordkeeping technology have now made it possible to

expand the provisions for access to remedy indexes.

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.

Interested persons may participate in this proposed rulemaking by

submitting data, views, or arguments in writing to the Bureau of

Prisons, 320 First Street, NW., HOLC Room 754, Washington, DC 20534.

Comments received during the comment period will be considered before

final action is taken. All comments received remain on file for public

inspection at the above address. The proposed rule may be changed in

light of the comments received. No oral hearings are contemplated.

List of Subjects in 28 CFR Part 542

Prisoners.

Wade B. Houk,

Acting 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 revise 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:

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 Bureau of Prisons institutions, 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.

(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. After the required informal resolution attempt, an

inmate may submit a formal written Administrative Remedy Request on the

appropriate form (BP-9), within 20 calendar days of 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 has not

been received.

(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 three copies 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

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 Section, 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 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. 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 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. 94-24362 Filed 9-30-94; 8:45 am]

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