PART 40—STANDARDS FOR INMATE GRIEVANCE PROCEDURES Authority: 42 U.S.C. 1997e. Source: Order No. 957-81, 46 FR 48186, Oct. 1, 1981, unless otherwise noted. Subpart A—Minimum Standards for Inmate Grievance Procedures § 40.1 Definitions. For the purposes of this part— (a) Act (b) Applicant (c) Attorney General (d) Grievance (e) Inmate (f) Institution (g) State (h) Substantial compliance § 40.2 Adoption of procedures. Each applicant seeking certification of its grievance procedure for purposes of the Act shall adopt a written grievance procedure. Inmates and employees shall be afforded an advisory role in the formulation and implementation of a grievance procedure adopted after the effective date of these regulations, and shall be afforded an advisory role in reviewing the compliance with the standards set forth herein of a grievance procedure adopted prior to the effective date of these regulations. § 40.3 Communication of procedures. The written grievance procedure shall be readily available to all employees and inmates of the institution. Additionally, each inmate and employee shall, upon arrival at the institution, receive written notification and an oral explanation of the procedure, including the opportunity to have questions regarding the procedure answered orally. The written procedure shall be available in any language spoken by a significant portion of the institution's population, and appropriate provisions shall be made for those not speaking those languages, as well as for the impaired and the handicapped. § 40.4 Accessibility. Each inmate shall be entitled to invoke the grievance procedure regardless of any disciplinary, classification, or other administrative or legislative decision to which the inmate may be subject. The institution shall ensure that the procedure is accessible to impaired and handicapped inmates. § 40.5 Applicability. The grievance procedure shall be applicable to a broad range of complaints and shall state specifically the types of complaints covered and excluded. At a minimum, the grievance procedure shall permit complaints by inmates regarding policies and conditions within the jurisdiction of the institution or the correctional agency that affect them personally, as well as actions by employees and inmates, and incidents occurring within the institution that affect them personally. The grievance procedure shall not be used as a disciplinary procedure. § 40.6 Remedies. The grievance procedure shall afford a successful grievant a meaningful remedy. Although available remedies may vary among institutions, a reasonable range of meaningful remedies in each institution is necessary. § 40.7 Operation and decision. (a) Initiation. (b) Inmate and employee participation. (c) Investigation and consideration. (d) Reasoned, written responses. (e) Fixed time limits. (f) Review. [Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 1618-92, 57 FR 38773, Aug. 27, 1992; Order No. 1955-95, 60 FR 13902, Mar. 15, 1995] § 40.8 Emergency procedure. The grievance procedure shall contain special provision for responding to grievances of an emergency nature. Emergency grievances shall be defined, at a minimum, as matters regarding which disposition according to the regular time limits would subject the inmate to a substantial risk of personal injury, or cause other serious and irreparable harm to the inmate. Emergency grievances shall be forwarded immediately, without substantive review, to the level at which corrective action can be taken. The procedure for resolving emergency grievances shall provide for expedited responses at every level of decision. The emergency procedure shall also include review by a person or entity not under the supervision or control of the institution. § 40.9 Reprisals. The grievance procedure shall prohibit reprisals. “Reprisal” means any action or threat of action against anyone for the good faith use of or good faith participation in the grievance procedure. The written procedure shall include assurance that good faith use of or good faith participation in the grievance mechanism will not result in formal or informal reprisal. An inmate shall be entitled to pursue through the grievance procedure a complaint that a reprisal occurred. § 40.10 Records—nature; confidentiality. (a) Nature. (b) Confidentiality. Subpart B—Procedures for Obtaining Certification of a Grievance Procedure § 40.11 Submissions by applicant. (a) Written statement. (b) Evidence of compliance with established standards. (1) Instructional materials. (2) Form. (3) Information regarding past compliance. (4) Plan for collecting information. (5) Assurance of confidentiality. (6) Evaluation. (c) Fair and effective procedures. [Order No. 1955-95, 60 FR 13903, Mar. 15, 1995] § 40.12 Notice of intent to apply for certification. The applicant shall post notice of its intent to request certification in prominent places in each institution to be covered by the procedure and shall provide similar written notice to the U.S. District Court(s) having jurisdiction over each institution to be covered by the procedure. The notices shall invite comments regarding the grievance procedure and direct them to the Attorney General. § 40.13 Review by the Attorney General. The Attorney General shall review and respond to each application as promptly as the circumstances, including the need for independent investigation and consideration of the comments of agencies, and interested groups and persons, permit. § 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 § 40.15, whichever period is shorter. [Order No. 1955-95, 60 FR 13903, Mar. 15, 1995] § 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. [Order No. 1955-95, 60 FR 13903, Mar. 15, 1995] § 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. [Order No. 1955-95, 60 FR 13903, Mar. 15, 1995] § 40.17 Reapplication after denial of certification. An applicant denied certification may resubmit an application for certification at any time after the inadequacy in the application or the grievance procedure is corrected. § 40.18 Suspension of certification. (a) Reasonable belief of non-compliance. (b) Defect may be readily remedied; good faith effort. (c) Recertification after suspension pursuant to paragraph (a) of this section. (d) Recertification after suspension pursuant to paragraph (b) of this section. (e) Notification in writing of suspension or reinstatement. [Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 1955-95, 60 FR 13903, Mar. 15, 1995] § 40.19 Withdrawal of certification. (a) Finding of non-compliance. (b) Notification in writing of withdrawal of certification. (c) Recertification after withdrawal. [Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 1955-95, 60 FR 13903, Mar. 15, 1995] § 40.20 Contemplated change in certified procedure. A proposed change in a certified procedure must be submitted to the Attorney General thirty days in advance of its proposed effective date. The Attorney General shall review such proposed change and notify the applicant in writing before the effective date of the proposed change if such change will result in suspension or withdrawal of the certification of the grievance procedure. § 40.21 Notification of court. The Attorney General shall notify in writing the Chief Judges of the U.S. Court of Appeals and of the U.S. District Court(s) within whose jurisdiction the applicant is located of the certification, suspension of certification, withdrawal of certification and recertification of the applicant's grievance procedure. The Attorney General shall also notify the court of the certification status of any grievance procedure at the request of the court or any party in an action by an adult inmate pursuant to 42 U.S.C. 1983. § 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. [Order No. 1955-95, 60 FR 13904, Mar. 15, 1995]