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[Federal Register Volume 76, Number 23 (Thursday, February 3, 2011)]
[Rules and Regulations]
[Pages 6054-6056]
From the Federal Register Online via the Government Printing 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]
BILLING CODE 4410-05-P
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