2011-2364. Use of Less-Than-Lethal Force: Delegation

AGENCY:

Bureau of Prisons, Justice.

ACTION:

Final rule.

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 [phone].

SUPPLEMENTARY INFORMATION:

In this document, the Bureau finalizes a regulation proposed on June 25, 2008 (73 FR 39584), regarding the use of 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 § 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.

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 § 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

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.

2. Revise § 552.25 to read as follows:

§ 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.

3. In § 552.27, remove the term “non-lethal” and add the term “less-than-lethal” in its place.