SUPPLEMENTARY INFORMATION:

I. Discussion

This rule outlines how an individual (inmate, staff member, or civilian) presents an administrative claim under the Federal Tort Claims Act to the Bureau of Prisons and explains the Bureau's procedures for processing such claims. After consideration of the one public comment, the Bureau finalizes the provisions of the interim rule and correcting amendment, while making minor edits to section 543.32(h).

A. Procedural History

On November 7, 2023, the Bureau published an interim final rule at 88 FR 76656 making minor revisions to regulations in 28 CFR part 543, subpart C—Federal Tort Claims Act, to clarify requirements for presenting claims and correct obsolete and/or correcting incorrect references to Bureau offices. On December 20, 2023, the Bureau published a correcting amendment at 88 FR 87903 to correct inadvertent errors and omissions in the interim rule. The correction was required for two reasons. First, we neglected to revise the headings of three paragraphs in § 543.31 to conform with the statement-like form of other paragraph headings we amended in the interim rule. Thus, the correction changed the headings of paragraphs (a), (b), and (e) in § 543.31 so that they are declarative rather than interrogative. Second, the third instruction in the interim rule omitted paragraphs (g) and (h) in § 543.32, so the regulatory text was not updated. Accordingly, the correction revised the instructions to include those missing paragraphs, thereby appropriately updating the Code of Federal Regulations.

Before, the comment period for the rule closed on January 8, 2024, we received one comment.

B. Discussion of Single Comment Received

Comment: The commenter writes primarily about one of his own tort claims and argues in support of settlement of his claim. However, he makes two observations about the rule. First, he notes that the six-month investigatory period “might be a long time to let some problems fester.” Second, he suggests we add the following language in § 543.32: “The Associate General Counsel shall attempt to optimize any long-term benefits to prison operations and the public interest in reaching a settlement.”

Response: No response is required as to individualized disagreements with the general FTCA claim system, which are outside the scope of this rulemaking action, nor will the Bureau address the merits of any particular FTCA claim in this context.

The Bureau needs six months to fully investigate claims and to make informed decisions on whether to deny the claim or pursue settlement. This six‐month period is provided by statute, 28 U.S.C. 2675(a), and applies to all FTCA administrative claims presented to the required appropriate federal agency, no matter the agency involved. We decline to amend the rule based on this first suggestion.

Regarding the second suggestion, we note that Bureau legal staff already consider many factors in the settlement of administrative FTCA claims, including factors not specifically included in the regulations. For example, in evaluating each claim individually for settlement, the Bureau considers all information provided by the claimant, the investigation, relevant records, and applicable policy and legal authority. We also decline to amend the rule based on this second suggestion. ( printed page 101882)

C. Discussion of Minor Edits to Section 543.32(h)

Upon further review of § 543.32(h), we decided to make two changes to that section to clarify the language and ensure it more closely aligns with the FTCA. The language of the second sentence to that section currently in effect via the interim final rule reads: “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.” The revised language included in the final rule reads: “If you have not received a letter denying your claim within six months after the date your claim was presented, you may deem the absence of a response to your claim as a denial.”

The first change is to the first clause of the second sentence in section § 543.32(h). We changed the language by removing the phrase “either proposing a settlement or” because we do not want to imply the Bureau's proposal of a settlement within six months precludes the option of the claimant deeming a claim denied. As discussed more in the next paragraph, what triggers the option for the claimant to deem a claim denied and to file suit is the failure of an agency to make a final disposition of a claim within six months. Since a settlement offer is not a “final disposition,” it cannot serve to preclude the claimant from filing suit.

The second change is to the second clause of the second sentence in § 543.32(h). In reviewing our draft of the final rule, we determined that use of the word “assume” in the second sentence to § 543.32(h) was unnecessary and confusing inasmuch as the statute itself, 28 U.S.C. 2675(a), does not mention “assumptions.” That language confers upon the claimant the “option” to deem their claim finally denied; the claimant is not required to “assume” that the sending of a settlement proposal means they are not entitled to file suit if six months have elapsed since presentment. Instead, the claimant retains the option to continue negotiating with no statute of limitations penalty, or they may opt instead to “deem” the claim denied and pursue a lawsuit in federal court.

II. Regulatory Analyses

Executive Orders 12866, 13563 and 14094. 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 final 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.

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 finalizes with minor changes, the interim rule published on November 7, 2023, (88 FR 76657) and the correction published on December 20, 2023 (88 FR 87903).