[Federal Register Volume 73, Number 123 (Wednesday, June 25, 2008)]
[Proposed Rules]
[Pages 35984-35985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14363]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 552

[BOP-1146-P]
RIN 1120-AB46


Use of Non-Lethal Force: Delegation

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 and non-lethal force 
to clarify that the authority of the Warden to authorize the use of 
chemical agents or non-lethal weapons may not be delegated below the 
position of Lieutenant.

DATES: Comments are due by August 25, 2008.

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

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

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 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 FURTHER INFORMATION CONTACT paragraph.

Discussion

    In this document, the Bureau proposes to amend its regulation on 
the use of chemical agents and non-lethal force to clarify that the 
authority of the Warden to authorize the use of chemical agents or non-
lethal weapons may not be delegated below the position of Lieutenant. 
The current regulation states that the Warden may authorize the use of 
chemical agents or non-lethal weapons 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.
    This revision resulted from a routine check of the Bureau's 
policies. The revised regulation will enable the Warden to further 
delegate the authority to make the determination that a situation 
warrants the use of chemical agents or non-lethal weapons to the senior 
facility supervisor on duty and physically present, but not below the 
position of Lieutenant. Currently, this regulation requires that such 
authority not be delegated below the level of

[[Page 35985]]

Warden. We make this revision to expedite decision-making by qualified 
staff, as needed to ensure the safety, security, and good order of the 
institution and the protection of the public.
    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), Regulatory Planning 
and Review, 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 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 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 propose to 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. 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 Sec.  552.25 to read as follows:


Sec.  552.25  Use of chemical agents or non-lethal weapons.

    (a) The Warden may authorize the use of chemical agents or non-
lethal weapons 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 
the senior facility supervisor on duty and physically present, but not 
below the position of Lieutenant.

 [FR Doc. E8-14363 Filed 6-24-08; 8:45 am]
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