81 FR 10153 - Use of Chemical Agents or Other Less-Than-Lethal Force in Immediate Use of Force Situations

DEPARTMENT OF JUSTICE
Bureau of Prisons

Federal Register Volume 81, Issue 39 (February 29, 2016)

Page Range		10153-10155
FR Document		2016-04069
In this document, the Bureau of Prisons (Bureau) proposes to amend its regulation on the use of chemical agents or other less-than- lethal force to provide that such use is authorized for staff in immediate use of force (emergency) situations.
Federal Register, Volume 81 Issue 39 (Monday, February 29, 2016)
[Federal Register Volume 81, Number 39 (Monday, February 29, 2016)]
[Proposed Rules]
[Pages 10153-10155]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-04069]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 552

[BOP-1167-P]
RIN 1120-AB67


Use of Chemical Agents or Other Less-Than-Lethal Force in 
Immediate Use of Force Situations

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
amend its regulation on the use of chemical agents or other less-than-
lethal force to provide that such use is authorized for staff in 
immediate use of force (emergency) situations.

DATES: Written comments must be submitted on or before April 29, 2016.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
320 First Street NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah N. Qureshi, Rules Unit, Office 
of General Counsel, Bureau of Prisons, phone (202) 353-8248.

SUPPLEMENTARY INFORMATION: 
    Posting of Public Comments. Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov. Such information 
includes personal identifying information (such as your

[[Page 10154]]

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 
has 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 
wish to inspect the agency's public docket file in person by 
appointment, please see the ``For Additional Information'' paragraph.

Discussion

    In this document, the Bureau of Prisons (Bureau) proposes to amend 
its regulations to explicitly authorize staff to utilize chemical 
agents or other less-than-lethal force in immediate use of force 
(emergency) situations. We also make a few minor edits for 
clarification and organization. We describe the proposed changes in 
further detail below.
    At the outset, we note that we are replacing the term ``weapons'' 
with the term ``devices'' both in the title and the body of the 
regulation. This is consistent with terminology used in Department of 
Justice policy describing the use of less-than-lethal force.

Sec.  552.25 Use of Less-Than-Lethal Devices, Including Chemical 
Agents--New Paragraph (a)

    Currently Sec.  552.25 allows the Warden to authorize the use of 
less-than-lethal devices, including chemical agents, when the situation 
is such that a delay in action would constitute a serious hazard to the 
inmate or others, or would result in a major disturbance or serious 
property damage, and the inmate is either armed and/or barricaded; or 
cannot be approached without a danger to self or others. The Warden may 
delegate his authority to one or more supervisors on duty and 
physically present, but not below the position of Lieutenant.
    In addition, under current Sec.  552.21(d), the use of less-than-
lethal devices could also be appropriate ``where the facts and 
circumstances known to the staff member would warrant a person using 
sound correctional judgment to reasonably believe other action is 
necessary (as a last resort) to prevent serious physical injury, or 
serious property damage which would immediately endanger the safety of 
staff, inmates, or others.'' Although this language indicates that a 
staff member in a situation where he or she reasonably believed action 
was necessary could use less-than-lethal force to ``prevent serious 
physical injury, or serious property damage which would immediately 
endanger the safety of staff, inmates or others,'' use of less-than-
lethal devices, including chemical agents, by staff in immediate use of 
force (emergency) situations is not explicitly authorized.
    The Bureau therefore proposes to amend Sec.  552.25 by adding a new 
paragraph (a), clearly indicating that ``Staff are authorized to use 
chemical agents or other less-than-lethal devices in immediate use of 
force situations pursuant to this subpart.''
    Current BOP regulations already define the parameters for immediate 
use of force situations. Section 552.21(a)currently defines ``immediate 
use of force,'' stating that ``[st]aff may immediately use force and/or 
apply restraints when the behavior described in Sec.  552.20 
constitutes an immediate, serious threat to the inmate, staff, others, 
property, or to institution security and good order.'' Section 552.20 
authorizes Bureau staff to use force only as a last alternative, and 
only to the extent necessary to address the inmate behavior which 
threatens the safety, security and good order of the facility, or 
protection of the public.
    Bureau of Prisons staff frequently respond to critical incidents 
and dangerous situations in Bureau facilities. Several incidents in 
recent years have resulted in injury to Bureau staff. Inmate attacks on 
staff continue to escalate, evolve and diversify, recent attacks have 
proceeded quickly, with more planning than in previous dangerous 
encounters. Sudden violent large-scale incidents involving large 
numbers of inmates, require immediate action. Measures are therefore 
necessary to ensure that staff are clearly authorized to promptly and 
safely control inmates during violent situations and mitigate the risk 
of serious bodily harm. This rule change would directly authorize staff 
to carry less-than-lethal devices for deployment in immediate use of 
force (emergency) situations.
    The goal of the proposed rule is to increase the safety of staff 
and inmates when staff respond to incidents involving violence, and to 
prevent injury to staff and inmates due to an assault or serious 
resistance to staff control. The rule will provide staff with immediate 
access to a less-than lethal-device, enabling quick containment of 
incidents, reducing opportunities for injuries to staff and inmates. 
Currently, responders to dangerous encounters do not have self-
protection capability without direct physical contact with involved 
inmates. There have been occasions where disruptive inmates have 
resisted control techniques by responding staff. In some instances, 
inmates armed with weapons have turned their attacks on staff. Staff 
have also responded to critical incidents on recreation yards which 
were not successfully interrupted by verbal commands and the non-
immediate discharge of one or more less-than-lethal devices and warning 
shots. These dangers increase the potential for assaults and injury, 
both to staff and to other inmates, and pose a general risk to the 
safety and security of the facility.
    The use of less-than-lethal devices has become accepted throughout 
the law enforcement community. Correctional staff at the majority of 
state and local correctional facilities routinely carry and utilize 
less-than-lethal devices to protect themselves from inmate attacks and 
prevent dangerous encounters from escalating. Several of these state 
agencies have allowed line staff to utilize less-than-lethal devices 
for more than a decade.
    National Institute of Justice (NIJ) studies of the use of chemical 
agents published in 1997 (Evaluation of Pepper Spray. NJC 162358, 
February 1997, by Steven M. Edwards, John Granfield, and Jamie Onnen (8 
pages).) and 2003 (The Effectiveness and Safety of Pepper Spray. NJC 
195739, April 2003, by National Institute of Justice (19 pages).) 
documented similar increases in compliance and reductions in injuries 
in community law enforcement situations. Although the study did not 
examine use of chemical agents in correctional settings, the long term 
studies by NIJ show that the use of force

[[Page 10155]]

complaints, injuries to officers, and injuries to aggressive persons 
have fallen significantly anywhere less-than-lethal force is an option.
    Based on the above information and the authority already provided 
in Sec.  552.21(d), the Bureau conducted a limited test of the 
usefulness and effectiveness of staff use of less-than-lethal devices 
(Oleoresin Capsicum [OC, or MK-4]) in select Bureau facilities. During 
the period from October 15, 2012 to March 14, 2013, the Bureau found 
that the average containment time in facilities using OC in immediate 
use of force situations was 2.93 minutes, as compared to the 5.48 
minutes in facilities which did not use any less-than lethal weapon in 
immediate use of force situations. In other words, the use of OC 
resulted in an average containment time that was a full 2.55 minutes 
faster.
    We therefore make this change to increase the safety of staff and 
inmates when staff respond to incidents involving violence, and to 
prevent injury to staff and inmates due to an assault or serious 
resistance to staff control, by providing staff with immediate access 
to a less-than lethal-device, thereby enabling quick containment of 
incidents and reducing opportunities for injuries to staff and inmates.

Sec.  552.25 Use of Less-Than-Lethal Devices, Including Chemical 
Agents--Paragraph (b)

    The Bureau also proposes to redesignate current Sec.  552.25(a) and 
(b) into paragraph (b) and (c), respectively. The only changes made are 
non-substantive conforming changes to accommodate new paragraph (a), as 
described above. The wording and intent of this language remains the 
same.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation and in accordance with Executive Order 13563 
``Improving Regulation and Regulatory Review'' section 1(b) General 
Principles of Regulation.
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and accordingly this rule has 
been reviewed by the Office of Management and Budget. This rule is a 
delegation of authority from the Director of BOP to explicitly 
authorize the use of less-than-lethal devices in immediate use of force 
(emergency) situations.
    Further, both Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. The Department has assessed the costs and 
benefits of this regulation and believes that the regulatory approach 
selected maximizes net benefits.

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 
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. 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 571.

    Prisoners.

Kathleen M. Kenney,
Assistant Director/General Counsel, Federal 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 propose to amend 28 CFR part 552, chapter 
V, subchapter C, as follows:

Subchapter C--Institutional Management

PART 552--CUSTODY

0
1. The authority citation for part 552 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; 28 
CFR 0.95-0.99.

0
2. Revise Sec.  552.25 to read as follows:


Sec.  552.25  Use of less-than-lethal devices, including chemical 
agents.

    (a) Staff are authorized to use chemical agents or other less-than-
lethal devices in immediate use of force situations pursuant to this 
subpart.
    (b) For situations other than immediate use of force situations, 
the Warden may authorize the use of less-than-lethal devices, including 
those containing chemical agents, only when 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, and the situation is such that the inmate:
    (1) Is armed and/or barricaded; or
    (2) Cannot be approached without danger to self or others.
    (c) The Warden may delegate the authority under paragraph (b) to 
one or more supervisors on duty and physically present, but not below 
the position of Lieutenant.

[FR Doc. 2016-04069 Filed 2-26-16; 8:45 am]
BILLING CODE 4410-05-P
Federal Register / Vol. 81, No. 39 / Monday, February 29, 2016 / Proposed Rules 10153

ACTION: Notice of proposed rulemaking; at DOE’s Forrestal Building, unless (Enhanced licenses issued by these
public meetings. otherwise stated. states are clearly marked Enhanced or
• March 21, 2016; 9:00 a.m.–5:00 p.m. Enhanced Driver’s License); A military
SUMMARY: The Department of Energy ID or other Federal government issued
at 955 L’Enfant Plaza, 8th Floor
(DOE) announces public meetings and
• March 22, 2016; 9:00 a.m.–5:00 p.m. Photo-ID card.
webinars for the DPPP Working Group. Docket: The docket is available for
at Navigant, 1200 19th St. NW., #700,
The Federal Advisory Committee Act review at www.regulations.gov,
Washington, DC 20036
requires that agencies publish notice of • April 18, 2016; 9:00 a.m.–5:00 p.m. at including Federal Register notices,
an advisory committee meeting in the DOE’s Forrestal Building, Room 6E– public meeting attendee lists and
Federal Register. 069 transcripts, comments, and other
On July 30, 2015, ASRAC met and • April 19, 2016; 9:00 a.m.–5:00 p.m. at supporting documents/materials. All
unanimously passed the DOE’s Forrestal Building, Room 6A– documents in the docket are listed in
recommendation to form a dedicated 110 the www.regulations.gov index.
purpose pool pumps (DPPP) working However, not all documents listed in
group to meet and discuss and, if Members of the public are welcome to
observe the business of the meeting and, the index may be publicly available,
possible, reach consensus on proposed such as information that is exempt from
Federal rules that would apply to this if time allows, may make oral
statements during the specified period public disclosure.
equipment. The ASRAC Charter allowed
for 3 months of working group meetings for public comment. To attend the Issued in Washington, DC, on February 19,
meeting and/or to make oral statements 2016.
to establish the scope, metric,
definitions, and test procedure for regarding any of the items on the Kathleen B. Hogan,
dedicated purpose pool pumps and agenda, email asrac@ee.doe.gov . In the Deputy Assistant Secretary for Energy
decide on a path forward at that time. email, please indicate your name, Efficiency, Energy Efficiency and Renewable
organization (if appropriate), Energy.
The working group met this requirement
and now more time is required to citizenship, and contact information. [FR Doc. 2016–04321 Filed 2–26–16; 8:45 am]
discuss potential energy conservation Please note that foreign nationals BILLING CODE 6450–01–P

standards for this equipment. On participating in the public meeting are
January 20, 2016, ASRAC met and subject to advance security screening
recommended that the DPPP Working procedures which require advance DEPARTMENT OF JUSTICE
Group continue its work to develop and notice prior to attendance at the public
recommend potential energy meeting. If you are a foreign national, Bureau of Prisons
conservation standards for this and wish to participate in the public
equipment. This notice announces the meeting, please inform DOE as soon as 28 CFR Part 552
next series of meetings for this working possible by contacting Ms. Regina [BOP–1167–P]
group. Washington at (202) 586–1214 or by
email: Regina.Washington@ee.doe.gov RIN 1120–AB67
DATES: See SUPPLEMENTARY INFORMATION
so that the necessary procedures can be
section for meeting dates. Use of Chemical Agents or Other Less-
completed. Anyone attending the
ADDRESSES: The meetings will be held at meeting will be required to present a Than-Lethal Force in Immediate Use of
U.S. Department of Energy, Forrestal government photo identification, such Force Situations
Building, 1000 Independence Avenue as a passport, driver’s license, or
SW., Washington, DC 20585 unless AGENCY: Bureau of Prisons, Justice.
government identification. Due to the ACTION: Proposed rule.
otherwise stated in the SUPPLEMENTARY required security screening upon entry,
INFORMATION section. Individuals will individuals attending should arrive SUMMARY: In this document, the Bureau
also have the opportunity to participate early to allow for the extra time needed. of Prisons (Bureau) proposes to amend
by webinar. To register for the webinars Due to the REAL ID Act implemented its regulation on the use of chemical
and receive call-in information, please by the Department of Homeland agents or other less-than-lethal force to
register at DOE’s Web site https:// Security (DHS) recent changes have provide that such use is authorized for
www1.eere.energy.gov/buildings/ been made regarding ID requirements staff in immediate use of force
appliance_standards/rulemaking.aspx/ for individuals wishing to enter Federal (emergency) situations.
ruleid/14. buildings from specific states and U.S. DATES: Written comments must be
FOR FURTHER INFORMATION CONTACT: Mr. territories. Driver’s licenses from the submitted on or before April 29, 2016.
John Cymbalsky, U.S. Department of following states or territory will not be
ADDRESSES: Rules Unit, Office of
Energy, Office of Energy Efficiency and accepted for building entry and one of
Renewable Energy, Building General Counsel, Bureau of Prisons, 320
the alternate forms of ID listed below
Technologies, EE–5B, 1000 First Street NW., Washington, DC
will be required.
Independence Avenue SW., 20534.
DHS has determined that regular
Washington, DC 20585–0121. driver’s licenses (and ID cards) from the FOR FURTHER INFORMATION CONTACT:
Telephone: (202) 287–1692. Email: following jurisdictions are not Sarah N. Qureshi, Rules Unit, Office of
asrac@ee.doe.gov. acceptable for entry into DOE facilities: General Counsel, Bureau of Prisons,
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS

Ms. Johanna Jochum, U.S. Department Alaska, Louisiana, New York, American phone (202) 353–8248.
of Energy, Office of the General Counsel, Samoa, Maine, Oklahoma, Arizona, SUPPLEMENTARY INFORMATION:
GC–33, 1000 Independence Avenue Massachusetts, Washington, and Posting of Public Comments. Please
SW., Washington, DC 20585–0121. Minnesota. note that all comments received are
Telephone: (202) 586–9496. Email: Acceptable alternate forms of Photo- considered part of the public record and
Johanna.Jochum@Hq.Doe.Gov. ID include: U.S. Passport or Passport made available for public inspection
SUPPLEMENTARY INFORMATION: DOE will Card; an Enhanced Driver’s License or online at http://www.regulations.gov.
host public meetings and webinars on Enhanced ID-Card issued by the states Such information includes personal
the below dates. Meetings will be hosted of Minnesota, New York or Washington identifying information (such as your

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10154 Federal Register / Vol. 81, No. 39 / Monday, February 29, 2016 / Proposed Rules

name, address, etc.) voluntarily hazard to the inmate or others, or would numbers of inmates, require immediate
submitted by the commenter. result in a major disturbance or serious action. Measures are therefore necessary
If you want to submit personal property damage, and the inmate is to ensure that staff are clearly
identifying information (such as your either armed and/or barricaded; or authorized to promptly and safely
name, address, etc.) as part of your cannot be approached without a danger control inmates during violent
comment, but do not want it to be to self or others. The Warden may situations and mitigate the risk of
posted online, you must include the delegate his authority to one or more serious bodily harm. This rule change
phrase ‘‘PERSONAL IDENTIFYING supervisors on duty and physically would directly authorize staff to carry
INFORMATION’’ in the first paragraph present, but not below the position of less-than-lethal devices for deployment
of your comment. You must also locate Lieutenant. in immediate use of force (emergency)
all the personal identifying information In addition, under current § 552.21(d), situations.
you do not want posted online in the the use of less-than-lethal devices could The goal of the proposed rule is to
first paragraph of your comment and also be appropriate ‘‘where the facts and increase the safety of staff and inmates
identify what information you want circumstances known to the staff when staff respond to incidents
redacted. member would warrant a person using involving violence, and to prevent
If you want to submit confidential sound correctional judgment to injury to staff and inmates due to an
business information as part of your reasonably believe other action is assault or serious resistance to staff
comment but do not want it to be posted necessary (as a last resort) to prevent control. The rule will provide staff with
online, you must include the phrase serious physical injury, or serious immediate access to a less-than lethal-
‘‘CONFIDENTIAL BUSINESS property damage which would device, enabling quick containment of
INFORMATION’’ in the first paragraph immediately endanger the safety of staff, incidents, reducing opportunities for
of your comment. You must also inmates, or others.’’ Although this injuries to staff and inmates. Currently,
prominently identify confidential language indicates that a staff member responders to dangerous encounters do
business information to be redacted in a situation where he or she not have self-protection capability
within the comment. If a comment has reasonably believed action was without direct physical contact with
so much confidential business necessary could use less-than-lethal involved inmates. There have been
information that it cannot be effectively force to ‘‘prevent serious physical occasions where disruptive inmates
redacted, all or part of that comment injury, or serious property damage have resisted control techniques by
may not be posted on http:// which would immediately endanger the responding staff. In some instances,
www.regulations.gov. safety of staff, inmates or others,’’ use of inmates armed with weapons have
Personal identifying information less-than-lethal devices, including turned their attacks on staff. Staff have
identified and located as set forth above chemical agents, by staff in immediate also responded to critical incidents on
will be placed in the agency’s public use of force (emergency) situations is recreation yards which were not
docket file, but not posted online. not explicitly authorized. successfully interrupted by verbal
Confidential business information The Bureau therefore proposes to commands and the non-immediate
identified and located as set forth above amend § 552.25 by adding a new discharge of one or more less-than-lethal
will not be placed in the public docket paragraph (a), clearly indicating that devices and warning shots. These
file. If you wish to inspect the agency’s ‘‘Staff are authorized to use chemical dangers increase the potential for
public docket file in person by agents or other less-than-lethal devices assaults and injury, both to staff and to
appointment, please see the ‘‘For in immediate use of force situations other inmates, and pose a general risk to
Additional Information’’ paragraph. pursuant to this subpart.’’ the safety and security of the facility.
Current BOP regulations already The use of less-than-lethal devices has
Discussion define the parameters for immediate use become accepted throughout the law
In this document, the Bureau of of force situations. Section enforcement community. Correctional
Prisons (Bureau) proposes to amend its 552.21(a)currently defines ‘‘immediate staff at the majority of state and local
regulations to explicitly authorize staff use of force,’’ stating that ‘‘[st]aff may correctional facilities routinely carry
to utilize chemical agents or other less- immediately use force and/or apply and utilize less-than-lethal devices to
than-lethal force in immediate use of restraints when the behavior described protect themselves from inmate attacks
force (emergency) situations. We also in § 552.20 constitutes an immediate, and prevent dangerous encounters from
make a few minor edits for clarification serious threat to the inmate, staff, escalating. Several of these state
and organization. We describe the others, property, or to institution agencies have allowed line staff to
proposed changes in further detail security and good order.’’ Section utilize less-than-lethal devices for more
below. 552.20 authorizes Bureau staff to use than a decade.
At the outset, we note that we are force only as a last alternative, and only National Institute of Justice (NIJ)
replacing the term ‘‘weapons’’ with the to the extent necessary to address the studies of the use of chemical agents
term ‘‘devices’’ both in the title and the inmate behavior which threatens the published in 1997 (Evaluation of Pepper
body of the regulation. This is safety, security and good order of the Spray. NJC 162358, February 1997, by
consistent with terminology used in facility, or protection of the public. Steven M. Edwards, John Granfield, and
Department of Justice policy describing Bureau of Prisons staff frequently Jamie Onnen (8 pages).) and 2003 (The
the use of less-than-lethal force. respond to critical incidents and Effectiveness and Safety of Pepper
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS

dangerous situations in Bureau Spray. NJC 195739, April 2003, by
§ 552.25 Use of Less-Than-Lethal facilities. Several incidents in recent National Institute of Justice (19 pages).)
Devices, Including Chemical Agents— years have resulted in injury to Bureau documented similar increases in
New Paragraph (a) staff. Inmate attacks on staff continue to compliance and reductions in injuries
Currently § 552.25 allows the Warden escalate, evolve and diversify, recent in community law enforcement
to authorize the use of less-than-lethal attacks have proceeded quickly, with situations. Although the study did not
devices, including chemical agents, more planning than in previous examine use of chemical agents in
when the situation is such that a delay dangerous encounters. Sudden violent correctional settings, the long term
in action would constitute a serious large-scale incidents involving large studies by NIJ show that the use of force

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Federal Register / Vol. 81, No. 39 / Monday, February 29, 2016 / Proposed Rules 10155

complaints, injuries to officers, and explicitly authorize the use of less-than- 1996. This regulation will not result in
injuries to aggressive persons have lethal devices in immediate use of force an annual effect on the economy of
fallen significantly anywhere less-than- (emergency) situations. $100,000,000 or more; a major increase
lethal force is an option. Further, both Executive Orders 12866 in costs or prices; or significant adverse
Based on the above information and and 13563 direct agencies to assess all effects on competition, employment,
the authority already provided in costs and benefits of available regulatory investment, productivity, innovation, or
§ 552.21(d), the Bureau conducted a alternatives and, if regulation is on the ability of United States-based
limited test of the usefulness and necessary, to select regulatory companies to compete with foreign-
effectiveness of staff use of less-than- approaches that maximize net benefits based companies in domestic and
lethal devices (Oleoresin Capsicum [OC, (including potential economic, export markets.
or MK–4]) in select Bureau facilities. environmental, public health and safety
During the period from October 15, 2012 effects, distributive impacts, and List of Subjects in 28 CFR Part 571.
to March 14, 2013, the Bureau found equity). Executive Order 13563 Prisoners.
that the average containment time in emphasizes the importance of
facilities using OC in immediate use of quantifying both costs and benefits, of Kathleen M. Kenney,
force situations was 2.93 minutes, as reducing costs, of harmonizing rules, Assistant Director/General Counsel, Federal
compared to the 5.48 minutes in and of promoting flexibility. The Bureau of Prisons.
facilities which did not use any less- Department has assessed the costs and
than lethal weapon in immediate use of benefits of this regulation and believes Under rulemaking authority vested in
force situations. In other words, the use that the regulatory approach selected the Attorney General in 5 U.S.C. 301, 28
of OC resulted in an average maximizes net benefits. U.S.C. 509, 510, and delegated to the
containment time that was a full 2.55 Director, Bureau of Prisons in 28 CFR
minutes faster. Executive Order 13132 0.96, we propose to amend 28 CFR part
We therefore make this change to This regulation will not have 552, chapter V, subchapter C, as follows:
increase the safety of staff and inmates substantial direct effects on the States, Subchapter C—Institutional Management
when staff respond to incidents on the relationship between the national
involving violence, and to prevent government and the States, or on PART 552—CUSTODY
injury to staff and inmates due to an distribution of power and
assault or serious resistance to staff responsibilities among the various ■ 1. The authority citation for part 552
control, by providing staff with levels of government. Therefore, under continues to read as follows:
immediate access to a less-than lethal- Executive Order 13132, we determine
Authority: 5 U.S.C. 301; 18 U.S.C. 3621,
device, thereby enabling quick that this regulation does not have 3622, 3624, 4001, 4042, 4081, 4082 (Repealed
containment of incidents and reducing sufficient federalism implications to in part as to offenses committed on or after
opportunities for injuries to staff and warrant the preparation of a Federalism November 1, 1987), 5006–5024 (Repealed
inmates. Assessment. October 12, 1984 as to offenses committed
§ 552.25 Use of Less-Than-Lethal Regulatory Flexibility Act after that date), 5039; 28 U.S.C. 509, 510; 28
Devices, Including Chemical Agents— CFR 0.95–0.99.
The Director of the Bureau of Prisons,
Paragraph (b) under the Regulatory Flexibility Act (5 ■ 2. Revise § 552.25 to read as follows:
The Bureau also proposes to U.S.C. 605(b)), reviewed this regulation
redesignate current § 552.25(a) and (b) and certifies that it will not have a § 552.25 Use of less-than-lethal devices,
including chemical agents.
into paragraph (b) and (c), respectively. significant economic impact upon a
The only changes made are non- substantial number of small entities for (a) Staff are authorized to use
substantive conforming changes to the following reasons: This regulation chemical agents or other less-than-lethal
accommodate new paragraph (a), as pertains to the correctional management devices in immediate use of force
described above. The wording and of offenders committed to the custody of situations pursuant to this subpart.
intent of this language remains the the Attorney General or the Director of (b) For situations other than
same. the Bureau of Prisons. Its economic immediate use of force situations, the
Executive Orders 12866 and 13563— impact is limited to the Bureau’s Warden may authorize the use of less-
Regulatory Review appropriated funds. than-lethal devices, including those
This regulation has been drafted and Unfunded Mandates Reform Act of containing chemical agents, only when
reviewed in accordance with Executive 1995 a delay in bringing the situation under
Order 12866, ‘‘Regulatory Planning and control would constitute a serious
This regulation will not result in the
Review’’ section 1(b), Principles of hazard to the inmate or others, or would
expenditure by State, local and tribal
Regulation and in accordance with result in a major disturbance or serious
governments, in the aggregate, or by the
Executive Order 13563 ‘‘Improving property damage, and the situation is
private sector, of $100,000,000 or more
Regulation and Regulatory Review’’ such that the inmate:
in any one year, and it will not
section 1(b) General Principles of significantly or uniquely affect small (1) Is armed and/or barricaded; or
Regulation. governments. Therefore, no actions were
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS

(2) Cannot be approached without
The Department of Justice has deemed necessary under the provisions danger to self or others.
determined that this rule is not a of the Unfunded Mandates Reform Act
‘‘significant regulatory action’’ under (c) The Warden may delegate the
of 1995.
Executive Order 12866, section 3(f), authority under paragraph (b) to one or
Regulatory Planning and Review, and Small Business Regulatory Enforcement more supervisors on duty and
accordingly this rule has been reviewed Fairness Act of 1996 physically present, but not below the
by the Office of Management and This regulation is not a major rule as position of Lieutenant.
Budget. This rule is a delegation of defined by § 804 of the Small Business [FR Doc. 2016–04069 Filed 2–26–16; 8:45 am]
authority from the Director of BOP to Regulatory Enforcement Fairness Act of BILLING CODE 4410–05–P

VerDate Sep<11>2014 17:29 Feb 26, 2016 Jkt 238001 PO 00000 Frm 00024 Fmt 4702 Sfmt 9990 E:\FR\FM\29FEP1.SGM 29FEP1
Document Created: 2016-02-27 02:04:55
Document Modified: 2016-02-27 02:04:55
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Written comments must be submitted on or before April 29, 2016.
Contact		Sarah N. Qureshi, Rules Unit, Office of General Counsel, Bureau of Prisons, phone (202) 353-8248.
FR Citation		81 FR 10153
RIN Number		1120-AB67
81 FR 10153 - Use of Chemical Agents or Other Less-Than-Lethal Force in Immediate Use of Force Situations

DEPARTMENT OF JUSTICEBureau of Prisons

Federal Register Volume 81, Issue 39 (February 29, 2016)

DEPARTMENT OF JUSTICE
Bureau of Prisons
