[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14242]
[[Page Unknown]]
[Federal Register: June 13, 1994]
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Part IV
Department of Justice
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Bureau of Prisons
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28 CFR Part 552
Use of Force and Application of Restraints; Final Rule
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 552
RIN 1120-AA13
Use of Force and Application of Restraints
AGENCY: Bureau of Prisons, Justice.
ACTION: Finalization of interim rule.
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SUMMARY: In this document, the Bureau of Prisons is finalizing its
interim rule on Use of Force and Application of Restraints. These
amendments take note of public comment received and include
clarification on confrontation avoidance procedures, provisions for the
use of soft restraints and ambulatory restraints, updated provisions
for the documentation of incidents, provisions on the role of medical
staff, and various editorial amendments. In updating procedures to
follow in situations which require the use of force or application of
restraints, these amendments are intended to provide for the security
of the institution and for the well-being of inmates and staff.
EFFECTIVE DATE: June 13, 1994.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT:
Roy Nanovic, Office of General Counsel, Bureau of Prisons, phone (202)
514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is finalizing its
interim rule on Use of Force and Application of Restraints, which was
published in the Federal Register May 17, 1989 (54 FR 21394). A summary
of the public comment and agency response follows.
The Bureau received comment regarding paragraphs (c), (e), (f),
(g), and (j) of Sec. 552.21, and on Secs. 552.22 and 552.23. With
respect to Sec. 552.21(c), the commenter stated that there was a lack
of specificity as to which institutional regulations could be enforced
by the use of restraints and/or force. The Bureau believes, however,
that the general guidelines and statement of purpose in revised
Sec. 552.20 (discussed below) and the governing principles contained in
newly designated Sec. 552.22 adequately acknowledge the serious nature
of conditions which authorize the use of force and/or restraints.
With respect to Sec. 552.21(e), the commenter stated that the
lifting and carrying of an inmate in restraints could expose the inmate
to both malicious and unintentional physical harm by those prison staff
carrying the inmate. The commenter further stated that such lifting
might also expose staff to injury, and stated that no prisoners should
be dragged nor should inmates be enlisted for the purpose of lifting or
carrying a restrained inmate because they have not had appropriate
training. The Bureau believes that newly designated Sec. 552.22(h)
clearly prohibits the infliction of malicious harm. In addition,
appropriate training on the use of force and/or restraints and on the
lifting and carrying of an inmate in restraints is provided to Bureau
staff. The Bureau believes that this training is sufficient to address
the commenter's concerns on minimizing the risk of unintentional
physical harm to either inmate or staff. Finally, the Bureau wishes to
note that its regulations on the use of force and/or restraints are
implemented by staff and not by inmates.
With respect to Sec. 552.21(f), the commenter objected to the
absence of any reference to maximum time length allowed on the use of
restraints. The commenter further noted that medical staff should be
consulted when the inmate ``is unable to regain his or her self-control
within a normal time'' and for determining whether continued use of
restraints is necessary. The Bureau believes that adequate provision
for medical review and/or continuing care is contained in newly
designated Sec. 552.26. As noted below, the Bureau is making further
amendment to its provisions for the role of medical staff in use of
force and application of restraints incidents.
With respect to Sec. 552.21(g), the commenter questioned the use of
restraints on an inmate in administrative detention or disciplinary
segregation. The Bureau notes that this paragraph (now designated as
Sec. 552.22(g)) states that, except when the immediate use of
restraints is required for the control of the inmate, application or
continued application of restraints on an inmate in administrative
detention or disciplinary segregation requires the approval of Warden
or designee. The Bureau wishes to note that such application would not
be routine, and it believes that requiring approval at this level is
sufficient to ensure that such application does accomplish legitimate
penological objectives. As noted below, the Bureau is making further
amendments to this section.
With respect to Sec. 552.21(j), the commenter noted a discrepancy
in that this paragraph provided that all significant incidents
involving use of force and application of restraints require
documentation, while Sec. 522.26 stated that all incidents involving
use of force or restraints be documented. As noted below, newly
designated Sec. 552.22(j) is being amended to remove this unintentional
discrepancy.
With respect to Sec. 552.22, the commenter objected to exception
being made by the Director for use of confrontation avoidance
procedures in specific institutions or housing units. As noted below,
this section (now designated as Sec. 552.23) is being revised to remove
stated exceptions.
With respect to Sec. 552.23, the commenter stated that with the
exception of preventing inmate self-injury, it is never necessary to
implement four-point restraints. The commenter noted particular
objection to paragraph (e), stating that it allows prison staff to deny
the inmate in four-point restraints an opportunity to use the toilet if
he or she continued to resist or became violent while being released.
The commenter believed that any self-destructive behavior exhibited by
an inmate in four-point restraint should be reported to medical staff
and that control over the use of four-point restraint by medical
personnel is essential. The Bureau believes that this section contains
sufficient safeguards. As noted below, however, this section (now
designated as Sec. 552.24) is being further amended for editorial
purposes. The Bureau believes that the editorial restatement of the
introductory text clarifies that four-point restraints are to be used
when it is determined that they are the only means available to obtain
and maintain control over an inmate. The provisions in paragraph (e)
are intended to guarantee that the inmate's access to toilet facilities
are controlled by the inmate's behavior. The Bureau believes that newly
designated Secs. 552.24(f) and 552.26 adequately provide for medical
review and responsibility.
After due consideration of the comments received, and based upon
the experience gained from application of the previously revised
regulations, the Bureau makes the following further amendments. For the
sake of clarity, the provisions in former Sec. 552.20 are being revised
into two separate sections, and former Secs. 552.21 through 552.26 are
redesignated as Secs. 552.22 through 552.27 in order to accommodate the
new section. Paragraph codification and cross references in the revised
regulations have been adjusted as necessary. In Sec. 552.20, the
introductory text (formerly paragraph (a)) is further amended to
include a statement that staff are authorized to use force only as a
last alternative after all other reasonable efforts to resolve a
situation have failed. Paragraphs (a) and (b) of this section (formerly
paragraphs (a) (1) and (2)) are amended for editorial purposes. In
paragraph (d) (formerly paragraph (a)(4)) the word ``wounds'' is
revised to read ``injury'' to describe more accurately conditions which
may lead to authorized use of restraints by staff. Because an injury
may be of such a nature that it would not by strict definition be
considered a wound, the Bureau believes it reasonable to use the
broader word ``injury.'' In new Sec. 552.21 on types of force, section
headings were added to paragraphs (c) and (d) for the sake of editorial
consistency. In addition, paragraph (c) (formerly Sec. 552.20(d)) is
amended to include reference to soft and ambulatory (leg) restraints.
The use of soft restraints and ambulatory restraints is intended to
allow for graduated procedures in applying restraints.
In newly designated Sec. 552.22, paragraph (a) is amended to remove
an obsolete cross reference, and paragraph (g) is amended to include
reference to graduated procedures in applying restraints. In paragraph
(h), introductory text is amended to include an example of restraint
equipment, and paragraph (h)(2) is amended to clarify specific
situations to help avoid physical problems of an inmate under
restraints. Paragraph (j) is amended to remove any inconsistency with
the provisions of newly designated Sec. 522.27.
Newly designated Sec. 552.23 is revised to broaden the use of
confrontation avoidance procedures. To this effect, paragraph (b),
which contained provisions for exception, is removed.
In newly designated Sec. 552.24, introductory text is amended to
further clarify when four-point restraints may be used. In paragraph
(a), ``vinyl'' is substituted for ``leather.'' Additional editorial
amendments to this section make no change in the intent of the
regulation.
Newly designated Sec. 552.25 is amended for editorial purposes.
There is no change in the intent of the regulation.
Newly designated Sec. 552.26 is revised to specify the role of
medical staff in calculated use of force situations. Paragraph (a) is
also amended to include provisions specifically applicable to pregnant
inmates.
Newly designated Sec. 552.27 is reworded, although its intent is
unchanged.
The Bureau believes that the changes to the interim rule discussed
above do not impose additional restrictions on inmates and are
necessary in order to provide for the continued protection of inmates,
staff, and property. The Bureau therefore finds good cause for
exempting the provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of further proposed rulemaking, the opportunity
for public comment, and delay in effective date for these additional
changes.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866; this rule
was reviewed by the Office of Management and Budget pursuant to E.O.
12866. After review of the law and regulations, the Director, Bureau of
Prisons has certified that this rule, for the purpose of the Regulatory
Flexibility Act (Pub. L. 96-354), does not have a significant impact on
a substantial number of small entities.
List of Subjects in 28 CFR Part 552
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), the interim rule amending 28 CFR
part 552 which was published at 54 FR 21394 on May 17, 1989, is adopted
as a final rule with the following change:
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 552--CUSTODY
1. The authority citation for 28 CFR 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.
Secs. 552.21 through 552.26 [Redesignated as Secs. 552.22 through
552.27]
2. Sections 552.21 through 552.26 are redesignated as Secs. 552.22
through 552.27.
3. Section 552.20 is revised to read as follows:
Sec. 552.20 Purpose and scope.
The Bureau of Prisons authorizes staff to use force only as a last
alternative after all other reasonable efforts to resolve a situation
have failed. When authorized, staff must use only that amount of force
necessary to gain control of the inmate, to protect and ensure the
safety of inmates, staff, and others, to prevent serious property
damage and to ensure institution security and good order. Staff are
authorized to apply physical restraints necessary to gain control of an
inmate who appears to be dangerous because:
(a) The inmate assaults another individual;
(b) The inmate destroys government property;
(c) The inmate attempts suicide;
(d) The inmate inflicts injury upon self; or
(e) The inmate becomes violent or displays signs of imminent
violence.
This rule on application of restraints does not restrict the use of
restraints in situations requiring precautionary restraints,
particularly in the movement or transfer of inmates (e.g., the use of
handcuffs in moving inmates to and from a cell in detention, escorting
an inmate to a Special Housing Unit pending investigation, etc.).
4. A new Sec. 552.21 is added to read as follows:
Sec. 552.21 Types of force.
(a) Immediate use of force. Staff 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.
(b) Calculated use of force and/or application of restraints. This
occurs in situations where an inmate is in an area that can be isolated
(e.g., a locked cell, a range) and where there is no immediate, direct
threat to the inmate or others. When there is time for the calculated
use of force or application of restraints, staff must first determine
if the situation can be resolved without resorting to force (see
Sec. 552.23).
(c) Use of Force Team Technique. If use of force is determined to
be necessary, and other means of gaining control of an inmate are
deemed inappropriate or ineffective, then the Use of Force Team
Technique shall be used to control the inmate and to apply soft
restraints, to include ambulatory leg restraints. The Use of Force Team
Technique ordinarily involves trained staff, clothed in protective
gear, who enter the inmate's area in tandem, each with a coordinated
responsibility for helping achieve immediate control of the inmate.
(d) Exceptions. Any exception to this rule is prohibited, except
where the facts and circumstances known to the staff member would
warrant a person with correctional experience 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.
5. In newly designated Sec. 552.22, paragraphs (a), (g), (h)
introductory text, (h)(2), (h)(4), and (j) are revised to read as
follows:
Sec. 552.22 Principles governing the use of force and application of
restraints.
(a) Staff ordinarily shall first attempt to gain the inmate's
voluntary cooperation before using force.
* * * * *
(g) Except where the immediate use of restraints is required for
control of the inmate, staff may apply restraints to, or continue the
use of progressive restraints on, an inmate while in a cell in
administrative detention or disciplinary segregation only with approval
of the Warden or designee.
(h) Restraint equipment or devices (e.g., handcuffs) may not be
used in any of the following ways:
* * * * *
(2) About an inmate's neck or face, or in any manner which
restricts blood circulation or obstructs the inmate's airways.
* * * * *
(4) To secure an inmate to a fixed object, such as a cell door or
cell grill, except as provided in Sec. 552.24.
* * * * *
(j) All incidents involving the use of force and the application of
restraints (as specified in Sec. 552.27) must be carefully documented.
6. Newly designated Sec. 552.23 is revised to read as follows:
Sec. 552.23 Confrontation avoidance procedures.
Prior to any calculated use of force, the ranking custodial
official (ordinarily the Captain or shift Lieutenant), a designated
mental health professional, and others shall confer and gather
pertinent information about the inmate and the immediate situation.
Based on their assessment of that information, they shall identify a
staff member(s) to attempt to obtain the inmate's voluntary cooperation
and, using the knowledge they have gained about the inmate and the
incident, determine if use of force is necessary.
7. In newly designated Sec. 552.24, the introductory text and
paragraph (a) are revised, and paragraph (e) is amended by revising the
first sentence to read as follows:
Sec. 552.24 Use of four-point restraints.
When it is determined that four-point restraints are the only means
available to obtain and maintain control over an inmate, the following
procedures must be followed:
(a) Soft restraints (e.g., vinyl) must be used to restrain an
inmate, unless such restraints previously have proven ineffective with
respect to that inmate, or proven ineffective during the initial
application procedure.
* * * * *
(e) A review of the inmate's placement in four-point restraints
shall be made by a Lieutenant every two hours to determine if the use
of restraints has had the required calming effect and so that the
inmate may be released from these restraints (completely or to lesser
restraints) as soon as possible. * * *
8. Newly designated Sec. 552.25 is amended by revising the
introductory text and paragraph (a) to read as follows:
Sec. 552.25 Use of chemical agents or non-lethal weapons.
The Warden may authorize the use of chemical agents or non-lethal
weapons only when the situation is such that the inmate:
(a) Is armed and/or barricaded; or
* * * * *
9. Newly designated Sec. 552.26 is revised to read as follows:
Sec. 552.26 Medical attention in use of force and application of
restraints incidents.
(a) In immediate use of force situations, staff shall seek the
assistance of mental health or medical staff upon gaining physical
control of the inmate. When possible, staff shall seek such assistance
at the onset of the violent behavior. In calculated use of force
situations, guidance of medical staff (based on a review of the
inmate's medical record) will be sought by the use of force team leader
to identify physical or mental problems. When mental health or medical
staff determine that an inmate requires continuing care, and
particularly when the inmate to be restrained is pregnant, the deciding
staff shall assume responsibility for care of the inmate, to include
possible admission to the institution hospital or, in the case of a
pregnant inmate, restraining her in other than a face down four-point
position.
(b) After any use of force or forcible application of restraints,
the inmate shall be examined by a member of the medical staff, and any
injuries noted, immediately treated.
10. Newly designated Sec. 552.27 is revised to read as follows:
Sec. 552.27 Documentation of use of force and application of
restraints incidents.
Staff shall appropriately document all incidents involving the use
of force, chemical agents, or non-lethal weapons. Staff shall also
document, in writing, the use of restraints on an inmate who becomes
violent or displays signs of imminent violence. A copy of the report
shall be placed in the inmate's central file.
[FR Doc. 94-14242 Filed 6-10-94; 8:45 am]
BILLING CODE 4410-05-P
