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)

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, 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.

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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]
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