Bulletproof Vest Partnership Grant Act of 1998

DEPARTMENT OF JUSTICE

Bureau of Justice Assistance

28 CFR Part 33

[OJP(BJA)-1192]

RIN 1121-AA48

Bulletproof Vest Partnership Grant Act of 1998

AGENCY: Office of Justice Programs, Bureau of Justice Assistance (BJA),

DOJ.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: This part delineates the process by which the Bureau of

Justice Assistance (BJA), Director, authorized by the Bulletproof Vest

Partnership Grant Act of 1998 (Act), will provide armor vests to

eligible States, units of local government, and Indian tribes for use

by law enforcement officers. BJA will provide eligible applicants that

participate in the program assistance in selecting and purchasing body

armor vests. Specifically, BJA will provide information regarding the

range of vests that have been tested by the National Institute of

Justice (NIJ) and are found to meet or exceed the NIJ Standard 0101.03.

Eligible applicants can then select vests from the list of NIJ-tested

models found to meet or exceed the NIJ Standard 0101.03. BJA will pay

up to 50% of the cost, either directly or indirectly through a third

party, of the vests selected by eligible applicants. Eligible

applicants will pay the remainder of the total cost. Total cost will

include the cost of the armor vests, taxes, shipping, and handling. The

manufacturer will send the vests directly to the eligible applicants

that ordered them.

Information regarding all other application requirements of the

program will be available in BJA's Bulletproof Vest Partnership

Guidelines that will be completed when Congress has appropriated funds

for this assistance program. Once compiled, the Guidelines will be

available through the BJA Home Page at www.ojp.usdoj.gov/BJA and

through the Department of Justice Response Center at 1-800-421-6770.

Until the Guidelines are available, interested parties are asked to

check the above sources for updates on the status of this program.

DATES: This interim final rule is effective on September 23, 1998;

comments on this rule must be received on or before November 23, 1998.

ADDRESSES: Comments should be sent to: Bulletproof Vest Partnership

Program, Bureau of Justice Assistance, 810 Seventh Street NW,

Washington, DC 20531.

FOR FURTHER INFORMATION CONTACT: See the BJA Home Page at

www.ojp.usdoj.gov/BJA or call the Department of Justice Response Center

at 1-800-421-6770.

SUPPLEMENTARY INFORMATION:

Introduction

This interim final rule establishes the program by which BJA will

implement The Bulletproof Vest Partnership Grant Act of 1998 (Act), 42

U.S.C.. 3796ll; Pub. L. 105-181, June 16,1998.

The Bulletproof Vest Partnership Grant Act of 1998

The purpose of this Act is to save lives and prevent injury of law

enforcement officers by helping State, local, and tribal law

enforcement agencies provide officers with armor vests. The Act is

based on Congress' observations that the number of law enforcement

officers who are killed in the line of duty would significantly

decrease if every law enforcement officer in the United States had the

protection of an armor vest.

Law enforcement officers consist of officers, agents, or employees

of State, units of local government, or Indian tribes, authorized by

law or by a government agency to engage in or supervise the prevention,

detection, or investigation of any violation of criminal law, or

authorized by law to supervise sentenced criminal offenders. BJA

considers law enforcement officers to include those officers, agents,

or employees of State, units of local government, or Indian tribes,

authorized by law or by a government agency to supervise pre-sentenced

and non-sentenced detainees.

The Justice Department estimates approximately 150,000 law

enforcement officers in the United States, or nearly 25 percent, are

not issued body armor. Studies conducted between 1985 and 1994 point

out that over 700 officers in the United States were feloniously killed

in the line of duty while bullet-resistant materials helped save the

lives of more than 2,000 officers. The Federal Bureau of Investigation

(FBI) has estimated that the risk of fatality to officers not wearing

armor vests is 14 times higher than for officers wearing them.

The Executive Committee for Indian Country Law Enforcement

Improvements reports that violent crime in Indian country has risen

sharply, despite a decrease in the national crime rate, constituting a

public safety crisis in Indian country. Moreover, during 1995, there

were approximately 13,000 assaults on state correctional officers, and

about 1,100 assaults on Federal correctional officers, nationwide. Of

those assaults, 14 resulted in fatalities. See Census of State and

Federal Correctional Facilities, 1995, Stephan, James J., U.S.

Department of Justice, Office of Justice Programs, Bureau of Justice

Statistics, August 1997, NCJ-164266.

This Act provides grants of armor vests to States, units of local

government, and Indian tribes as a preventive measure to better ensure

their safety as these officers implement violent crime prevention

initiatives across the United States.

Armor Vests

Armor vests have been defined as body armor that meets or exceeds

the requirements of National Institute of Justice (NIJ) Standard

0101.03: Ballistic Resistance of Police Body Armor. Law enforcement

fatality statistics compiled by the FBI annually suggest that a large

percentage of officer fatalities may have been prevented if the

officers had been wearing body armor. Based on this observation, this

Act reinforces the message to law enforcement administrators that they

should make every effort to encourage their officers to wear

appropriate body armor throughout each duty shift. Although designed

primarily to protect against handgun assault, soft body armor has

prevented serious and potentially fatal injuries from traffic accidents

(both automobile and motorcycle), from physical assault with improvised

clubs, and, to some extent, from knives. To facilitate the acquisition

of appropriate body armor, the National Law Enforcement and Corrections

Technology Center (Center) of the National Institute of Justice (NIJ)

has identified models of body armor that have been tested and found to

meet the NIJ Standard.

The NIJ Standard

The Standard classifies body armor into six different threat levels

which, in order from lowest to highest level of protection, are Type I,

Type II-A, Type

[[Page 50760]]

II, Type III-A, Type III, and Type IV. The Act requires compliance with

at least a Type I vest which is the lowest or minimum level of

protection that any officer should have. Type II-A armor provides

protection from lower velocity .357 Magnum and 9mm ammunition and Type

II armor provides protection from higher velocity .357 Magnum and 9mm

ammunition. Type III-A armor provides the highest level of protection

available in soft body armor and is suitable for routine wear in many

situations; however, departments located in hot, humid climates may

need to carefully evaluate the use of Type III-A armor.

Types III and IV armor clearly are intended for use only in

tactical situations when the threat warrants such protection. The age

of the vest, whether the vest is properly fitted, and whether the vest

is actually worn are factors the Standard cannot test and are

considered the responsibility of the applying jurisdiction.

Application of the Standard

Responsibility for selection of the appropriate armor vest for

officers within a jurisdiction will be the responsibility of applicant

jurisdictions. BJA will require that all purchased vests are among

those tested and found to comply with the NIJ Standard.

Selection of Appropriate Armor

BJA will rely on NIJ expertise to provide applicants with

information regarding how to select appropriate armor vests. Knowledge

of contraband weapons in correctional facilities and of street weapons

in local areas (confiscated weapons are a good indication) are

essential considerations for selecting armor vests. It is also

essential to consider service weapons used by officers as during the

last decade one in six officers killed was shot with his or her own

weapon. The fit of the vest for each officer also must be considered.

Full coverage of the torso is critical to guard against bullets

entering an officer's side through the opening between the front and

rear vest panels.

Appropriation

Section 1001(a) of the Omnibus Crime Control and Safe Streets Act

of 1968 (42 U.S.C. 3793(a)) was amended to add an authorization of

$25,000,000 for each of the fiscal years 1999, 2000, and 2001 to carry

out this Act. Funds will be available after the appropriation has been

passed.

Executive Order 12866

This proposed regulation has been drafted and reviewed in

accordance with Executive Order 12866, section 1(b), Principles of

Regulation. The Office of Justice Programs 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 not been reviewed by the Office of Management and Budget.

Executive Order 12612

This regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant preparation of a Federalism

Assessment.

Initial Regulatory Flexibility Analysis

OJP has examined the impact of this interim final rule in light of

Executive Order 12866 and the Regulatory Flexibility Act, 5 U.S.C. 603,

et seq. Currently, OJP has identified over 1500 NIJ-tested vest models

found to meet NIJ Standard 0101.03. These vest models are manufactured

by approximately 60 manufacturers, including small and large

businesses. OJP has identified over 39,000 units of government that

would be eligible to apply for grants of vests under this program if

they have employees meeting the definition of ``law enforcement

officer'' within the meaning of the Act.

Chief Executive Officers (CEOs) of States, local units of

government and Indian tribes will coordinate vest needs for law

enforcement officers within a jurisdiction. CEOs will be given

responsibility for opening purchase accounts through a clearinghouse

operation managed by a designee of OJP. The clearinghouse will include

a full-service support system for applicants and eligible vest

manufacturers. After opening purchase accounts, applicants may access

the shopping portion of the clearinghouse operation as often as

necessary to negotiate and finalize vest orders with individual

manufacturers. Through the full service system, eligible applicants may

place one combined order annually, across multiple manufacturers. These

orders may provide for up to one vest per officer per year. Once an

individual vest order to a manufacturer has been received and verified

as complete by the applicant, payment of the Federal match of up to 50

percent of the total cost of the vest will be tendered to the

manufacturer. The manufacturer will collect the remainder of payment

directly from the applicant.

Section 2(b) of the Act makes clear that a major programmatic

purpose of the Act is ``to save lives of law enforcement officers by

helping State, local, and tribal law enforcement agencies provide

officers with armor vests.'' The Act states that ``according to

studies, between 1985 and 1994, bullet-resistant materials helped save

the lives of more than 2,000 law enforcement officers in the United

States,'' and during that same period, ``709 law enforcement officers

in the United States were feloniously killed in the line of duty.''

Sec. 2(a)(2), 2(a)(5). Moreover, Congress noted that ``nearly 25

percent'' of law enforcement officers across the United States ``are

not issued body armor.'' Sec. 2(a)(4), and that ``the number of law

enforcement officer * * * killed in the line of duty would

significantly decrease if every law enforcement officer in the United

States had the protection of an armor vest.'' Furthermore, ``the

Federal Bureau of Investigation estimates that the risk of fatality to

law enforcement officers while not wearing an armor vest is 14 times

higher than for officers wearing an armor vest.'' Sec. 2(a)(3).

OJP has considered alternatives to the system devised in this

interim final rule for the grant of body armor vests for law

enforcement officers, none of which would effectively or efficiently

accomplish its programmatic objectives. For reasons of programmatic

viability, manufacturers of NIJ-tested body armor vests will sell and

deliver all vests directly to applicants. This process will not involve

the multitude of intermediary product providers such as retailers,

individual and corporate distributors, and mail order businesses. Only

by requiring direct purchase and delivery of vests from manufacturers

can OJP accommodate the need for wide-ranging customization requests,

ensure quality control, encourage economic incentives and cost savings,

and facilitate swift completion of transactions.

Because these statistics are cause for considerable and immediate

concern, OJP has crafted a system to carry out the terms of the Act in

an expeditious manner, yet retain programmatic viability. Quality

control, timeliness in completing transactions, and economies of scale

are all significant features of the system, would support the

programmatic purpose, and would most

[[Page 50761]]

effectively address the concerns raised by these statistics. The

manufacturers are best able to effectively handle large volume orders,

a characteristic typical of larger law enforcement agencies, as well as

orders coming from multiple agencies simultaneously.

Moreover, in many instances, single product pieces will require

customizing to suit an individual's needs. Customization of individual

pieces would best be handled directly by manufacturers. In addition, to

ensure quality control, all vests provided must be tested subject to

the NIJ Standard; manufacturers can best accommodate the sale of

products in large volume that are required to be NIJ-tested, and can do

so in a timely manner without involving additional entities.

Furthermore, with regard to economies of scale, the order of vests

directly from manufacturers may afford applicants significant savings

on a cost per unit basis.

OJP recognizes that, because of the potentially diverse opinion in

the small business community regarding the affect of this interim final

rule, not all interested persons may have been fully represented prior

to its publication. OJP is therefore requesting that comments be

submitted to help insure that the concerns of all interested parties

are considered. Comments should identify the type of business,

including the number of individuals involved and the annual volume of

business conducted, and how the regulatory requirements in this interim

final rule would impact that business. Comments and suggestions may

also be provided, within the statutory requirements, regarding how the

final rule might be better tailored to the business without

compromising the basic mandate of the law to provide for the grant of

body armor vests for law enforcement officers.

Unfunded Mandates Reform Act of 1995

This rule 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 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 rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in cost or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete in domestic and export markets.

Paperwork Reduction Act

The collection of information requirements contained in this

regulation will be submitted to the Office of Management and Budget for

review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et

seq.).

Good Cause Exception

This regulation is being published as an interim final rule,

without prior publication of notice and comment, and is made effective

immediately, for good cause. Under 5 U.S.C. 553(a)(2), matters relating

to grants are exempted from notice and comment requirements. Moreover,

in this case, advance notice and comment would be impractical,

unnecessary, and contrary to the public interest in the prompt

implementation of the assistance program.

The Act requires that BJA must promulgate final implementing

regulations within 90 days of the June 16, 1998 enactment of the Act.

In order to comply with this requirement, these regulations must be

made effective immediately so that eligible States can apply for grants

of armor vests.

To publish a notice of proposed rulemaking and await receipt of

comments would delay significantly the implementation of this

assistance program. Such delay would be contrary to the public interest

and would contradict the Congressional intent to provide immediate

grants of armor vests, to eligible states, units of local government,

and Indian tribes for use by law enforcement officers. However, BJA is

extremely interested in receiving public comment on all aspects of this

program, and will consider fully all such comments submitted on or

before November 23, 1998, in preparing a final rule.

List of Subjects in 28 CFR Part 33

Administrative practice and procedure, Grants.

For the reasons set forth in the preamble, 28 CFR part 33 is

amended as follows:

PART 33--BUREAU OF JUSTICE ASSISTANCE GRANT PROGRAMS

1. The Heading for part 33 is revised as set forth above.

2. The authority citation for part 31 is revised to read as

follows:

Authority: Omnibus Crime Control and Safe Streets Act of 1968,

42 U.S.C. 3701, et seq., as amended (Pub. L. 90-351, as amended by

Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, and Pub. L. 94-503,

Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473) (the Justice

Assistance Act of 1984); Pub. L. 105-181, 112 Stat. 512, 42 U.S.C.

3796ll.

3. The designations ``Subpart A through Subpart I'' are removed and

the headings remain as undesignated center headings.

Secs. 33.1 through 33.80 and undesignated center headings [Designated

as Subpart A]

4. Sections 33.1 through 33.80, and the undesignated center

headings, are designated as subpart A and a new subpart heading is

added to read as follows:

Subpart A--Criminal Justice Block Grants

Sec. 33.1 [Amended]

5. Section 33.1 is amended by revising ``This part'' to read as

follows: ``This subpart''

Sec. 33.3 [Amended]

6. Section 33.3 is amended by revising ``this part 33'' to read as

follows: ``this subpart A''

7. Section 33.40 is amended by revising ``This subpart sets'' to

read as follows: ``Sections 33.40 and 33.41 set.''

8. Part 33 is further amended by adding the following new subpart B

to read as follows:

Subpart B--Bulletproof Vest Partnership Grant Program Applying for the

Program

Sec.

33.100 Definitions.

33.101 Standards and requirements.

33.102 Preferences.

33.103 How to apply.

Subpart B--Bulletproof Vest Partnership Grant Program Applying for

the Program

Sec. 33.100 Definitions.

The Bureau of Justice Assistance (BJA) will use the following

definitions in providing guidance to your jurisdiction regarding the

purchase of armor vests under the Bulletproof Vest Partnership Grant

Act of 1998--

(a) The term program will refer to the activities administered by

BJA to implement the Bulletproof Vest Partnership Grant Act of 1998;

(b) The terms you and your will refer to a jurisdiction applying to

this program;

(c) The term armor vest under this program will mean a vest that

has met the performance standards established by the National Law

Enforcement and Corrections Technology Center of the National Institute

of Justice (NIJ) as

[[Page 50762]]

published in NIJ Standard 0101.03, or any formal revision of this

standard;

(d) The term State will be used to mean each of the 50 States, as

well as the District of Columbia, the Commonwealth of Puerto Rico, the

United States Virgin Islands, American Samoa, Guam, and the Northern

Mariana Islands;

(e) The term unit of local government will mean a county,

municipality, town, township, village, parish, borough, or other unit

of general government below the State level;

(f) The term Indian tribe has the same meaning as in section 4(e)

of the Indian Self-Determination and Education Assistance Act (25

U.S.C. 450b(e)) which defines Indian tribe as meaning any Indian tribe,

band, nation, or other organized group or community, including any

Alaska Native village or regional or village corporation as defined in

or established pursuant to the Alaska Native Claims Settlement Act (85

Stat. 688) (43 U.S.C. 1601 et seq.);

(g) The term law enforcement officer will mean any officer, agent,

or employee of a State, unit of local government, or Indian tribe

authorized by law or by a government agency to engage in or supervise

the prevention, detection, or investigation of any violation of

criminal law, or authorized by law to supervise sentenced criminal

offenders; and

(h) The term mandatory wear policy will mean a policy formally

adopted by a jurisdiction that requires a law enforcement officer to

wear an armor vest throughout each duty shift whenever feasible.

Sec. 33.101 Standards and requirements.

This program has been developed to assist your jurisdiction with

selecting and obtaining high quality armor vests in the quickest and

easiest manner available. The program will assist your jurisdiction in

determining which type of armor vest will best suit your jurisdiction's

needs, and will ensure that each armor vest obtained through this

program meets the NIJ standard.

(a) Your jurisdiction will be provided with model numbers for armor

vests that meet the NIJ Standard in order to ensure your jurisdiction

receives the approved vests in the quickest manner;

(b) If you are a State or unit of local government, your

jurisdiction will be required to partner with the Federal government in

this program by paying at least 50 percent of the total cost for each

armor vest purchased under this program. These matching funds may not

be obtained from another Federal source;

(c) If you are an Indian tribe, your jurisdiction will be required

to partner with the Federal government in this program by paying at

least 50 percent of the total cost for each armor vest purchased under

this program. Total cost will include the cost of the armor vests,

taxes, shipping, and handling. You may use any funds appropriated by

Congress toward the performing of law enforcement functions on your

lands as matching funds for this program or any funds appropriated by

Congress for the activities of any agency of your tribal government;

(d) BJA will conduct outreach to ensure that at least half of all

funds available for armor vest purchases be given to units of local

government with fewer than 100,000 residents;

(e) Each State government is responsible for coordinating the needs

of law enforcement officers across agencies within its own jurisdiction

and making one application per fiscal year;

(f) Each unit of local government and Indian tribe is responsible

for coordinating the needs of law enforcement officers across agencies

within its own jurisdiction and making one application per fiscal year;

(g) Your individual jurisdiction may not receive more than 5

percent of the total program funds in any fiscal year;

(h) The 50 States, the District of Columbia, and the Commonwealth

of Puerto Rico, together with their units of local government, each may

not receive less than one half percent and not more than 20 percent of

the total program funds during a fiscal year;

(i) The United States Virgin Islands, American Samoa, Guam, and the

Northern Mariana Islands, together with their units of local

government, each may not receive less than one fourth percent and not

more than 20 percent of the total program funds during a fiscal year;

and

(j) If your jurisdiction also is applying for a Local Law

Enforcement Block Grant (LLEBG), then you will be asked to certify:

(1) Whether LLEBG funds will be used to purchase vests; and, if

not,

(2) Whether your jurisdiction considered using LLEBG funds to

purchase vests, but has concluded it will not use its LLEBG funds in

that manner.

Sec. 33.102 Preferences.

BJA may give preferential consideration, at its discretion, to an

application from a jurisdiction that--

(a) Has the greatest need for armor vests based on the percentage

of law enforcement officers who do not have access to an armor vest;

(b) Has, or will institute, a mandatory wear policy that requires

on-duty law enforcement officers to wear armor vests whenever feasible;

and

(c) Has a violent crime rate at or above the national average as

determined by the Federal Bureau of Investigation; or

(d) Has not received a Local Law Enforcement Block Grant.

Sec. 33.103 How to apply.

BJA will issue Guidelines regarding the process to follow in

applying to the program for grants of armor vests.

Dated: September 16, 1998.

Richard H. Ward, III,

Acting Director, Bureau of Justice Assistance.

[FR Doc. 98-25336 Filed 9-22-98; 8:45 am]

BILLING CODE 4410-18-P