Administrative Remedy Program

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

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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]

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