[Federal Register Volume 88, Number 214 (Tuesday, November 7, 2023)]
[Rules and Regulations]
[Pages 76656-76658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24384]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 543

[BOP-1180-I]
RIN 1120-AB80


Federal Tort Claims Act--Technical Changes

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) makes minor 
revisions to our regulations regarding the Federal Tort Claims Act that 
clarify requirements for presenting claims and correct obsolete and/or 
incorrect references to Bureau offices.

DATES: This rule is effective November 7, 2023. Electronic comments 
must be submitted, and written comments must be postmarked, no later 
than 11:59 p.m. on January 8, 2024.

ADDRESSES: Please submit electronic comments through the 
regulations.gov website, or mail written comments to the Legislative & 
Correctional Issues Branch, Office of General Counsel, Bureau of 
Prisons, 320 First Street NW, Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Daniel J. Crooks III, Assistant 
General Counsel, Federal Bureau of Prisons, at the address above or at 
(202) 353-4885.

SUPPLEMENTARY INFORMATION: Please note that all comments received are 
considered part of the public record and made available for public 
inspection online at www.regulations.gov. If you want to submit 
personal identifying information (such as your name, address, etc.) as 
part of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You must also locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
contains so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted 
www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

I. Discussion

    In this document, the Bureau makes minor revisions to regulations 
in 28 CFR part 543, subpart C--Federal Tort Claims Act that clarify 
requirements for presenting claims and correct obsolete and/or 
incorrect references to Bureau offices. Each of these minor changes is 
discussed below.
    Where to present the claim. The Bureau revises section 543.31, 
paragraph (c), to delete extraneous language and language indicating 
that if a loss or injury occurs in a training center, claimants may 
forward claims to the Associate General Counsel, Federal Law 
Enforcement Training Center. This inaccurately identifies the 
appropriate office designated to receive claims involving Bureau 
training centers. Claims are now accepted and processed at the 
appropriate Bureau Regional Counsel office for the region in which the 
training center is located.
    Deletion of ``a training center.'' Also in section 543.32, 
Processing the claim, the Bureau deletes the phrase ``a training 
center'' in paragraph (b). This paragraph indicates that if a claim is 
submitted to the incorrect office, the claimant will be notified that 
the claim was transferred to the appropriate office. The appropriate 
office may be another BOP office or another Federal agency. It will no 
longer refer to a training center, however, because such claims will no 
longer be processed there (see discussion above on ``where to present 
the claim'').
    Requests for additional information during investigations of 
claims. The Bureau deletes ``rejection or'' in the last sentence of 
section 543.32(c) to clarify that, after a claim has been properly

[[Page 76657]]

presented and an investigation initiated, if a claimant fails to 
provide requested information, the claim may be denied.
    Specificity of office designation. In paragraph (d) of section 
543.32, regarding the offices with authority to deny or propose 
settlement of a claim, the Bureau clarifies that the Associate General 
Counsel, Litigation Branch, in the Office of General Counsel will 
investigate and propose settlement, and that if the proposed settlement 
exceeds the authority granted to the Bureau of Prisons (not authority 
granted to the Office of General Counsel), the General Counsel will 
seek Department of Justice approval.
    No consideration of appreciation/depreciation. Finally, the Bureau 
deletes paragraph (f) of section 543.32, regarding the consideration of 
appreciation or depreciation of lost or damaged property during 
settlement of a claim. The Bureau deletes this paragraph because the 
former Department of Justice policy that required consideration of 
appreciation or depreciation, Policy Statement 2110.23C (Filing And 
Settlement Of Claims Of Civilian Personnel For Damages To Or Loss Of 
Personal Property Incident To Service), was replaced with 1400.05 
(Claims for Damage to, or Loss of, Personal Property), which does not 
allow for the use of appreciation/depreciation to determine the value 
of lost or damaged property. The Bureau also adjusts the designation of 
the paragraphs that follow to account for this deletion.

II. Regulatory Analyses

Administrative Procedure Act.

    ``Unless a statutory exception applies, the APA requires agencies 
to publish a notice of proposed rulemaking in the Federal Register 
before promulgating a rule that has legal force.'' Little Sisters of 
the Poor Sts. Peter & Paul Home v. Pennsylvania, 591 U.S.---, 140 S. 
Ct. 2367, 2384 (2020). The Administrative Procedure Act (5 U.S.C. 
553(b)(3)(B)) allows exceptions to notice-and-comment rulemaking ``when 
the agency for good cause finds . . . that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' Further, sec. 553(d) provides an exception to the usual 
requirement of a delayed effective date when an agency finds ``good 
cause'' that the rule be made immediately effective.
    An agency may claim notice and comment is ``unnecessary'' where the 
administrative rule is a routine determination, insignificant in nature 
and impact, and inconsequential to the industry and public. Mack 
Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012); Util. Solid 
Waste Activities Grp. v. EPA, 236 F.3d 749, 754-55 (D.C. Cir. 2001). 
Unlike previous Bureau interim rules courts have addressed, this 
Interim Rule is by its nature non-substantive, functioning only as 
updated step-by-step guidance for how individuals, including current 
and former inmates, can present administrative tort claims. Cf. Paulsen 
v. Daniels, 413 F.3d 999 (9th Cir. 2005) (holding the Bureau violated 
the APA by issuing an interim rule that had ``the effect . . . [of] 
deny[ing] program eligibility to certain categories of inmates . . .).
    This rulemaking is exempt from normal notice-and-comment procedures 
because advance notice and public comment in this instance are 
unnecessary. The change to this regulation is non-substantive, minor, 
routine, insignificant, and made only to clarify Federal Tort Claims 
Act processing. This rulemaking makes no change to any rights or 
responsibilities of the agency or any regulated entities. Instead, this 
rulemaking seeks to promptly clarify legal procedures primarily for the 
benefit of individuals, including current and former federal inmates, 
who present administrative tort claims against the Bureau. For the same 
reasons, the Bureau finds that ``good cause'' exists to make this rule 
effective upon publication. Nevertheless, the Bureau invites public 
comment on this Interim Rule.
    Executive Orders 12866 and 13563. This rule does not fall within a 
category of actions that the Office of Management and Budget (OMB) has 
determined constitutes a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866 and, accordingly, it was not 
reviewed by OMB. The economic impact of this proposed rule is limited 
to inmates in the custody of the Federal Bureau of Prisons.
    Executive Order 13132. This rule will not have substantial direct 
effect on the States, on the relationship between the National 
Government and the States, or on distribution of power and 
responsibilities among the various levels of government. Therefore, 
under Executive Order 13132, the Bureau determines that this rule does 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Assessment.
    Regulatory Flexibility Act. The Director of the Bureau of Prisons, 
under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this 
rule and by approving it certifies that it will not have a significant 
economic impact upon a substantial number of small entities for the 
following reasons: This rule pertains to the correctional management of 
offenders committed to the custody of the Attorney General or the 
Director of the Bureau of Prisons, and its economic impact is limited 
to the Bureau's appropriated funds.
    Unfunded Mandates Reform Act of 1995. This rule will not result in 
the expenditure by State, local and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.
    Congressional Review Act. This rule is a not major rule as defined 
by the Congressional Review Act, 5 U.S.C. 804. This proposed rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

List of Subjects in 28 CFR Part 543

    Prisoners.

Colette S. Peters,
Director, Federal Bureau of Prisons.

    Under rulemaking authority vested in the Attorney General in 5 
U.S.C 301; 28 U.S.C. 509, 510 and delegated to the Director of the 
Bureau of Prisons in 28 CFR 0.96, the Bureau revises 28 CFR part 543 as 
follows.

PART 543--LEGAL MATTERS

0
1. The authority citation for 28 CFR part 543 continues to read as 
follows:

    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, 
1346(b), 2671-80; 28 CFR 0.95-0.99, 0.172, 14.1-11.

Subpart C--Federal Tort Claims Act

0
2. Revise paragraph (c) of Sec.  543.31 to read as follows:


Sec.  543.31  Presenting a claim.

* * * * *
    (c) Presenting a claim. You may either mail or deliver the claim to 
the regional office in the region where the loss or injury occurred. If 
the loss or injury occurred in the Central Office, you may either mail 
or deliver the claim to the

[[Page 76658]]

Office of General Counsel, Central Office. A list of addresses for all 
the Bureau institutions and offices can be found at www.bop.gov.

0
3. Revise paragraphs (a) through (d) and (f) of Sec.  543.32 to read as 
follows:


Sec.  543.32  Processing the claim.

    (a) Receipt of acknowledgment letters. If you have presented a 
claim signed by you or a duly authorized agent or legal representative 
that provides all the necessary information (such as time, date, and 
place where the incident occurred, and a specific sum of money you are 
requesting as damages), you will receive an acknowledgment letter 
indicating the presentment date and a claim number. If your submission 
is unsigned, or signed by a person without legal authority to present 
the claim on your behalf, or you fail to provide all necessary 
information, your submission will be rejected and returned to you for 
resubmission. The presentment date is the date your submission 
containing all required signatures and necessary information is first 
received by either the Department of Justice or an office of the Bureau 
of Prisons. You should refer to your claim number in all further 
correspondence with the agency. Additionally, you must inform the 
agency of any changes in your address.
    (b) Transfer of claims. If your claim is improperly submitted to 
the wrong office or agency, you will be notified by the responsible 
office that your claim was transferred to another regional office, the 
Central Office, or another agency.
    (c) Investigation. The regional office ordinarily refers the claim 
to the appropriate institution or office for investigation. You may 
also be required to provide additional information during the 
investigation. Your failure to respond within a reasonable time may 
result in the denial of the claim.
    (d) Administrative claim decisionmaker. The Regional Counsel or his 
or her designee reviews the investigation and the supporting evidence 
and renders a decision on all claims properly presented to the regional 
office and within regional settlement authority. The Regional Counsel 
has limited settlement authority (up to an amount established by the 
Director of the Bureau of Prisons). After considering the merits of the 
claim, the Regional Counsel may deny or propose a settlement of the 
claim. The Associate General Counsel, Litigation Branch, will 
investigate and propose settlement for all claims properly presented in 
the Central Office in accordance with delegated settlement authority. 
If the proposed settlement exceeds the Bureau of Prisons' authority, 
the General Counsel will seek approval from the appropriate Department 
of Justice officers.
* * * * *
    (f) Options if claim is denied or settlement offer is 
unsatisfactory. If your claim is denied or you are dissatisfied with a 
settlement offer, you may request in writing that the Bureau of Prisons 
reconsider your claim in the administrative stage. You should include 
additional evidence of injury or loss to support your request for 
reconsideration. If you are dissatisfied with the final agency action, 
you may file suit in an appropriate United States District Court, as no 
further administrative action is available.
    (g) Acceptance of settlement. If you accept a settlement, you give 
up your right to bring a lawsuit against the United States or against 
any employee of the government whose action or lack of action gave rise 
to your claim.
    (h) Response timeline. Generally, you will receive a decision 
regarding your claim within six months of when you properly present the 
claim. If you have not received a letter either proposing a settlement 
or denying your claim within six months after the date your claim was 
presented, you may assume your claim is denied. You may then proceed to 
file a lawsuit in the appropriate United States District Court.
* * * * *
[FR Doc. 2023-24384 Filed 11-6-23; 8:45 am]
BILLING CODE 4410-05-P