[Federal Register Volume 76, Number 23 (Thursday, February 3, 2011)]
[Rules and Regulations]
[Pages 6054-6056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2364]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 552
[BOP-1146-F]
RIN 1120-AB46
Use of Less-Than-Lethal Force: Delegation
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) finalizes its
proposed regulation on the use of chemical agents and other non-lethal
(less-than-lethal) force to clarify that the authority of the Warden to
authorize the use of chemical agents or other less-than-lethal weapons
may not be delegated below the position of Lieutenant.
DATES: This rule is effective on March 7, 2011.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION: In this document, the Bureau finalizes a
regulation proposed on June 25, 2008 (73 FR 39584), regarding the use
of
[[Page 6055]]
chemical agents and other less-than-lethal force. In this regulation,
we clarify that the authority of the Warden to authorize the use of
less-than-lethal weapons, including those containing chemical agents,
may not be delegated below the position of Lieutenant. We replace the
term ``non-lethal'' with the term ``less-than-lethal'' for reasons
described below.
We received four comments on the proposed rule. One comment was in
support of the proposed rule. We address issues raised by the comments
below.
One commenter stated the following: ``We believe such authority,
absent an emergency, should be delegated no further than Acting Warden
or on-site CEO. * * * Such low-level staff [Lieutenants] have an
egregious and established history of abusing incarcerated persons.'' A
second commenter was similarly concerned with the level of delegation.
First, the Bureau does not consider Lieutenants to be ``low-level
staff.'' Rather, they are part of the Bureau's management staff, with
the requisite training and experience to manage emergency situations,
including specific training on situations which necessitate the use of
chemical agents or other less-than-lethal weapons. The revision
effectuated by this final rule is necessary to expedite decision-making
by the Lieutenant, who is often the senior-most qualified staff
physically present at the scene of the emergency, thereby ensuring the
safety, security, and good order of the institution, and protection of
the public.
Second, we note that all the commenters discussed the regulation in
terms of delegation to one lieutenant (singular). We must correct the
apparent assumption underlying these comments, which may have been
caused by the language of the proposed regulation stating that the
Warden could delegate authority to use less-than-lethal force ``to the
senior facility supervisor on duty and physically present, but not
below the position of Lieutenant.'' We therefore alter the language to
clarify that such authority will be delegated to address multiple
emergency situations as needed. The language will read as follows:
``The Warden may delegate the authority under this regulation to one or
more supervisors on duty and physically present, but not below the
position of Lieutenant.''
Limiting the Warden's delegated authority to one Lieutenant at a
time would prevent Bureau staff from quickly and effectively responding
to multiple simultaneous emergency situations that may arise at
different places within the same Bureau facility.
Allowing the authority to prescribe the use of less-than-lethal
force to be delegated to one person alone is inappropriate, as it is
impossible for that one person to be ``physically present'' at more
than one emergency situation at a time within the Bureau facility.
Third, with regard to the commenter's allegations of abuse of
authority, it is important to note that Bureau staff, including
Lieutenants, are held to the highest standards of professionalism.
Although there is always the potential for abuse of any rule or staff
requirement, the Bureau conducts program reviews and quality control
inspections frequently to ensure staff compliance with rules and
policy. Employees are subject to administrative sanctions, personal
liability, and even criminal and civil penalties for misconduct. If an
inmate perceives staff abuse of the rules, that inmate can take
advantage of our administrative remedy procedures (28 CFR part 542).
A commenter who supported the proposed rule suggested that it be
``amended to include the requirement and detailed description of how
the Lieutenants will receive training on the use of chemical agents,
and the affects [sic]of the different kinds of chemical agent[s] to
those exposed.'' The Bureau's corresponding use of force policy
provides detailed guidance to staff and requires training of facility
staff in the use of chemical agents. The Bureau's program statements,
rather than the regulations themselves, are the appropriate vehicle
through which staff receive direction regarding the implementation of
the regulations.
A commenter also stated that, ``as DOJ's own statistics show, * * *
more incarcerated people are killed by use of these so-called ``non-
lethal'' weapons than those designated as lethal.'' The commenter did
not cite the ``DOJ statistics'' to which the comment refers. The
Bureau's experience with less-than-lethal weapons has not shown that
appropriate use of less-than-lethal alternatives has had lethal effect.
As an example, the most commonly used less-than-lethal alternatives
used by the Bureau involve chemical agents. Oleoresin Capsicum (OC) is
one of the types of chemical agents that the Bureau employs. OC is a
naturally occurring substance found in the oily resin of cayenne and
other varieties of peppers. In March 1994, the National Institute of
Justice (NIJ) Technology Assessment Program issued a paper describing
OC and its uses as a less-than-lethal weapon. National Institute of
Justice Technology Assessment Program, Oleoresin Capsicum: Pepper Spray
as a Force Alternative (March 1994).
The NIJ paper listed the following as the benefits of OC that were
found by State Departments of Correction at the time:
OC sprays seem to leave few if any residual effects,
allowing suspects to be transported without affecting transporting
officers. Decontamination protocol normally requires only fresh air and
soap and water.
Chemists assigned to the FBI's Forensic Science Research
and Training Center did not see any long-term health risks associated
with the use of OC.
Thirty-nine police agencies and three correctional
institutions using OC aerosols did not report any medical problems
encountered by subjects being subdued and arrested, and no medical
problems were encountered by the officers administering the OC.
Departments that have adopted OC sprays claim to have
fewer allegations of police use of excessive force or police brutality
charges, resulting in fewer lawsuits.
Departments have reported a reduction in officer and
arrestee injuries as a result of the introduction of OC sprays.
However, the NIJ paper also states that if the subject has preexisting
health issues, such as a respiratory problem, it is possible that OC
sprays may cause upper respiratory inflammation or have other
detrimental effects. In fact, virtually any weapon, or even item,
considered to be ``non-lethal'' may be used to lethal effect if used
inappropriately and contrary to Bureau policy. Therefore, for accuracy
in terminology, we replace the term ``non-lethal'' with the more
accurate term ``less-than-lethal.'' We also make a conforming change in
Sec. 552.27, to replace the term ``non-lethal'' in that regulation
with the term ``less-than-lethal.''
The term ``less-than-lethal'' is synonymous with ``less lethal'',
``non-lethal'', ``non-deadly'', and other such terms. We chose the term
``less-than-lethal'' because it most accurately describes the types of
devices contemplated by this regulation. These devices include impact
devices (such as batons, bean bag projectiles, etc.), chemical agents,
and conducted energy devices (such as electronic immobilization,
control, and restraint devices). ``Less-than-lethal'' devices are those
used with a reasonable expectation that death or serious bodily injury
will not result. As technology in this area evolves, the Bureau may use
different types of less-than-lethal weapons.
[[Page 6056]]
We therefore finalize the proposed rule with minor changes as
described above.
Executive Order 12866. This regulation has been drafted and
reviewed in accordance with Executive Order 12866, ``Regulatory
Planning and Review'' section 1(b), Principles of Regulation. This
regulation has been determined to be a ``significant regulatory
action'' under Executive Order 12866, section 3(f), and accordingly
this rule has been reviewed by the Office of Management and Budget.
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 regulation 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 regulation 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 regulation 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
regulation is not a major rule as defined by Sec. 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This regulation
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 552
Prisoners.
Harley G. Lappin,
Director, 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, Bureau
of Prisons in 28 CFR 0.96, we amend 28 CFR part 552 as follows.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 552--CUSTODY
0
1. The authority citation for 28 CFR part 552 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3050, 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; 28
CFR 0.95-0.99.
0
2. Revise Sec. 552.25 to read as follows:
Sec. 552.25 Use of less-than-lethal weapons, including chemical
agents.
(a) The Warden may authorize the use of less-than-lethal weapons,
including those containing chemical agents, only when the situation is
such that the inmate:
(1) Is armed and/or barricaded; or
(2) Cannot be approached without danger to self or others; and
(3) It is determined that a delay in bringing the situation under
control would constitute a serious hazard to the inmate or others, or
would result in a major disturbance or serious property damage.
(b) The Warden may delegate the authority under this regulation to
one or more supervisors on duty and physically present, but not below
the position of Lieutenant.
0
3. In Sec. 552.27, remove the term ``non-lethal'' and add the term
``less-than-lethal'' in its place.
[FR Doc. 2011-2364 Filed 2-2-11; 8:45 am]
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