[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
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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