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[Federal Register: June 18, 2010 (Volume 75, Number 117)]
[Rules and Regulations]               
[Page 34625-34626]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn10-3]                         

[[Page 34625]]

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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 542

[BOP-1159I]
RIN 1120-AB59

 
Administrative Remedy Program: Exception to Initial Filing 
Procedures

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) revises 
current regulations on the Administrative Remedy Program to add an 
exception to initial filing of Administrative Remedy appeals at the 
institution level. The exception will state that formal administrative 
remedy requests regarding initial decisions that did not originate with 
the Warden, or his/her staff, may be initially filed with the Bureau 
office which made the original decision, and appealed directly to the 
General Counsel.

DATES: This rule is effective on June 18, 2010. Comments due by August 
17, 2010.

ADDRESSES: Submit comments to the Rules Unit, Office of General 
Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 
20534. You may view an electronic version of this rule at http://www.regulations.gov. You may also comment via the Internet by using the 
http://www.regulations.gov comment form for this regulation. When 
submitting comments electronically you must include the BOP Docket No. 
in the subject box.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION:

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and are made available for public inspection online at 
http://www.regulations.gov. Such information includes personal 
identifying information (such as your name, address, etc.) voluntarily 
submitted by the commenter.
    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/includes so much confidential business information that it 
cannot be effectively redacted, all or part of that comment may not be 
posted on http://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 
want to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

Exception to Initial Filing Procedures

    In this document, the Bureau of Prisons (Bureau) revises current 
regulations on the Administrative Remedy Program to add an exception to 
initial filing of Administrative Remedy appeals at the institution 
level. The exception will state that formal administrative remedy 
requests regarding initial decisions that did not originate with the 
Warden, or his/her staff, may be initially filed with the Bureau office 
which made the original decision, and appealed directly to the General 
Counsel.
    Section 542.14 describes filing procedures for Administrative 
Remedy appeals (also called ``complaints'' or ``requests''), including 
the time-frame or deadline for submitting appeals, how to request 
extensions in filing time, and instructions for completing and 
submitting the requisite appeal form. The regulation states that 
inmates must submit appeals to the institution staff member designated 
to receive such appeals at the institution where the inmate is located. 
The regulation also states that inmates in community confinement may 
mail their appeals to the appropriate Community Corrections Manager for 
their location.
    Subparagraph (d) of Sec.  542.14 currently lists four exceptions to 
initial filing at the institution where the inmate is located. For 
sensitive issues, Discipline Hearing Officer (DHO) appeals, Control 
Unit appeals, and Controlled Housing Status appeals, inmates are 
permitted to bypass the institution level and raise the issue/appeal 
with the more appropriate authority. In each of these cases, because 
the initial decision was not made by institution staff, the appropriate 
authority to review appeals from such decisions is not at the 
institution level.
    Proposed additional exception: Other requests for formal review of 
decisions not originating from the Warden. The Bureau now adds a fifth 
exception to the initial filing procedures: Formal administrative 
remedy requests regarding initial decisions that did not originate with 
the Warden, or his/her staff, may be initially filed with the Bureau 
office which made the original decision, and appealed directly to the 
General Counsel.
    This new exception encompasses other situations similar to the 
currently existing exceptions, in which the institution level is not 
the appropriate or controlling authority to review an appeal because 
the decision being appealed was not decided at that level.
    The exception is a technical change to the regulation to 
accommodate internal redistribution of Bureau functions. For example, 
in 2005, the Bureau centralized its designation and sentence 
computation functions in a new Bureau branch, the Designation and 
Sentence Computation Center (DSCC), to streamline the Bureau's 
administrative functions and reduce operational costs. DSCC staff, not 
institution staff, make determinations on initial designation and 
sentence computation issues. Inmate requests for formal review of these 
types of issues are therefore appropriately considered by the DSCC 
instead of institution staff.
    With regard to initial determinations made by the DSCC and any 
other decisions not made at the institution level, Bureau policy on 
sentence computation and designation will direct staff to notify 
inmates of the alternative administrative remedy filing procedures. It 
is important to note, however, that if inmates mistakenly file a 
grievance at the institution level, they will not be penalized for that 
filing, but will rather be re-directed to the correct Bureau office.

Administrative Procedure Act

    The Administrative Procedure Act (5 U.S.C. 553) allows exceptions 
to notice-and-comment rulemaking for ``(A) interpretive rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice; or (B) when the agency for good cause finds * * * that

[[Page 34626]]

notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.''
    This rulemaking is exempt from normal notice-and-comment procedures 
because it is a technical change intended to reflect restructuring of 
Bureau of Prisons functions within the agency. We are also modifying 
our rule to permit inmates a more direct and efficient route of appeal 
of decisions/determinations made by Bureau entities other than 
institution-level staff.
    Because the regulations still reflect current Bureau policy, and 
because the regulations are being changed only to accommodate a 
restructuring of Bureau functions, we find that normal notice-and-
comment rulemaking is unnecessary. We are, however, allowing the public 
to comment on this rule change by publishing it as an interim final 
rule.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined to constitute a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866 and, accordingly, it was reviewed by OMB.
    The Bureau has assessed the costs and benefits of this rule as 
required by Executive Order 12866 Section 1(b)(6) and has made a 
reasoned determination that the benefits of this rule justify its 
costs. This rule will have the benefit of eliminating confusion in the 
courts that has been caused by the changes in the Bureau's statutory 
interpretation, while allowing us to continue to operate in compliance 
with the revised statute. There will be no new costs associated with 
this rulemaking.

Executive Order 13132

    This regulation will not have substantial direct effects 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, 
we determine 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 regulation 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This 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 542

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.

0
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, Bureau of 
Prisons in 28 CFR 0.96, we amend 28 CFR part 542 as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 542--ADMINISTRATIVE REMEDY

0
1. The authority citation for 28 CFR part 542 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.

0
2. Add a new paragraph (d)(5) to Sec.  542.14 to read as follows:

Sec.  542.14  Initial filing.

* * * * *
    (d) * * *
    (5) Other requests for formal review of decisions not originating 
from the Warden. Other than the exceptions listed above, formal 
administrative remedy requests regarding initial decisions that did not 
originate with the Warden, or his/her staff, may be initially filed 
with the Bureau office which made the original decision, and appealed 
directly to the General Counsel.

[FR Doc. 2010-14715 Filed 6-17-10; 8:45 am]
BILLING CODE 4410-05-P
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