Standards for Inmate Grievance Procedures

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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