[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]



=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 4410-01-M