What police agencies need to know about Executive Order 13688

The final recommendations of the Working Group designated by Executive Order 13688 were published in May 2015. This EO austerely impacts grant funding for every police department across the United States and is a must read to understand the changes in the grant acquisition and administrative process. 

Every police department and law enforcement agency must obtain a copy of this EO and the Universal Grant Guidelines (UGG) before you develop a grant project or application. This document provides an in-depth analysis of the EO impact on local law enforcement and provides guidance on the new criteria needed to apply for federal funds/programs. 

The Executive Order classifies certain types of equipment and vehicles into two categories: Prohibited Equipment list and Controlled Equipment list. Beyond these new classifications, the EO also specifies additional, mandatory information that agencies must include in all federal grants for acquisition of equipment and tools. 

The new rules about the collection and retention of controlled equipment for use is significant incidents and increased Federal oversight and compliance. The new rules established by EO 13688 are intended to provide increased federal oversight about the collection, retention and use of controlled equipment in significant incidents. The overarching goal of this EO is to maintain consistency across federal agencies, improve compliance with federal reporting requirements, increase transparency and improve community perception of law enforcement.

One of the most important impacts of EO 13688 is the classification of certain types of equipment and vehicles. Some federal agencies previously specified additional requirements and supporting documentation for certain items — the two equipment lists established by the EO are an extension of these previous requirements so they now affect all federal programs providing financial assistance to local law enforcement.

The new lists are as follows:

Controlled Equipment List

•    Manned Aircraft, Fixed Wing: Powered aircraft with a crew aboard 
•    Manned Aircraft, Rotary Wing: Powered aircraft with a crew aboard 
•    Unmanned Aerial Vehicles: A remotely piloted, powered aircraft without a crew aboard. 
•    Armored Vehicles, Wheeled: Any wheeled vehicle either purpose‐built or modified to provide ballistic protection to its occupants, examples include Mine‐ Resistant Ambush Protected (MRAP) vehicle or an Armored Personnel Carrier. These vehicles are sometimes used by law enforcement personnel involved in dangerous operating conditions, including active shooter or similar high‐threat situations; they often have weapon‐firing ports.
•    Tactical Vehicles, Wheeled: A vehicle purpose‐built to operate on‐and off‐ road in support of military operations, such as a HMMWV (“Humvee”), 2.5‐ton truck, 5‐ton truck, or a vehicle with a breaching or entry apparatus attached. These vehicles are sometimes used by law enforcement in rough terrain or inclement weather for search and rescue operations, as well as other law enforcement functions.
•    Command and Control Vehicles: Any wheeled vehicle either purpose‐built or modified to facilitate the operational control and direction of public safety units responding to an incident.  Command and Control vehicles provide a variety of capabilities to the incident Commander, including, but not limited to, the provision for enhanced communications and other situational awareness capabilities. 
•    Specialized Firearms and Ammunition Under .50‐Caliber (excludes firearms and ammunition for service‐issued weapons used during the course of regularly assigned duties): Weapons and corresponding ammunition for specialized operations or assignment. Includes “flash bangs” as well as explosive breaching tools often used by special operations units. 
•    Breaching Apparatus (e.g. battering ram or similar entry device): Tools designed to provide law enforcement rapid entry into a building or through a secured doorway. These tools may be mechanical in nature (a battering ram), ballistic (slugs), or explosive.
•    Riot Batons (excluding service‐issued telescopic or fixed‐length straight batons): Non‐expandable baton of greater length (generally in excess of 24 inches) intended to protect its wielder during melees by providing distance from assailants.
•    Riot Helmets: Helmets designed to protect the wearer’s face and head from injury during melees from projectiles including rocks, bricks, liquids, etc. Riot helmets include a visor which protects the face.
•    Riot Shields: Shields intended to protect wielders from their head to their knees in melees. Most are designed for the protection of the user from projectiles including rocks, bricks, and liquids. Some afford limited ballistic protection as well. Riot shields may also be used as an offensive weapon to push opponents.

Prohibited Equipment List

•    Tracked Armored Vehicles: Vehicles that provide ballistic protection to their occupants and utilize a tracked system instead of wheels for forward motion.
•    Weaponized Aircraft, Vessels, and Vehicles of Any Kind: These items will be prohibited from purchase or transfer with weapons installed. 
•    Firearms of .50‐Caliber or Higher
•    Ammunition of .50‐Caliber or Higher 
•    Grenade Launchers: Firearm or firearm accessory designed to launch small explosive projectiles

This EO has significant impact on the following programs:

•    Justice Assistance Grant 
•    LESO Program (military reutilization programs such as 1033 Program)
•    Urban Area Security Initiative 
•    COPS
•    Federal Asset Forfeiture programs
•    Any other federal funding stream (including State JAG programs) which allows for the purchase of any type of equipment listed in the prohibited or controlled lists

Changes to Grant Funding, Acquisition, and Administration
Besides establishing equipment as Controlled or Prohibited, the EO outlines new requirements regarding the acquisition and administration of federal funding supporting these items.

Law enforcement agencies will continue to submit applications according to the requirements mandated by individual Federal acquisitions programs; however, if requesting items on the Controlled Equipment List additional information must be submitted. 

•    Detailed justification for acquiring the controlled equipment, including a clear and persuasive explanation of the need for the equipment and the appropriate law enforcement purpose that it will serve. This should describe any previous instance in which the controlled equipment was used in a manner that deviated from the detailed justification supporting LEA’s current request.
•    Number of units of the requested controlled equipment that the LEA currently has in its inventory.  
•    Categories of other controlled equipment acquired through Federal programs during the past three (3) years that the LEA currently has in its inventory. 
•    Whether the requested controlled equipment currently could reasonably be accessed through loans or mutual assistance/mutual aid agreements.
•    Certification that the LEA has adopted required protocols and provided required training before physical acquisition or purchase of controlled equipment or transfer of funds (see the EO for required protocols and training)
•    Evidence of civilian governing body’s review and approval or concurrence of the LEA’s acquisition of the requested controlled equipment.
•    Whether the requesting LEA has applied, or has a pending application(s), for this type of controlled equipment from another Federal agency during the current fiscal year. 
•    Whether any prior application for controlled equipment has been denied by a Federal agency during the past three (3) years, and, if so, the reason for the denial
•    Whether the LEA has been found to be in violation of a Federal civil rights statute or programmatic term during the past three (3) years and, if so, whether any disposition was reached or corrective actions were taken.

Sanctions for Violations of Controlled Equipment Programs
EO 13688 outlines specific sanctions that may be imposed on an LEA if it fails to follow the terms and conditions related to controlled equipment. These may be imposed in addition to any other applicable sanctions specified by the Federal Agency and program parameters. 

•    Programmatic Violations: For violations of any programmatic term or condition related to controlled equipment (e.g., failure to adopt required protocols, unauthorized transfers), the LEA will be suspended from acquiring additional controlled equipment through Federal programs for a minimum of 60 days. The suspension will continue until the Federal agency determines that the violation has been corrected.  
•    Statutory Violation: For alleged violations of law, including civil rights laws, the matter will be referred for investigation to the Federal agency’s Office of Civil Rights (OCR) or other appropriate compliance office, or the U.S. Department of Justice. If the investigation results in a finding that the LEA violated a civil rights or other relevant statute, the LEA will be sanctioned according to statute and/or the Federal agency’s governing rules and policies. At a minimum, the LEA will be suspended from acquiring additional controlled equipment through Federal programs for a minimum of 60 days. The suspension will last until the Federal agency determines that the violation has been corrected.

Additional Resources
•    To locate a copy of this Executive Order click here.
•    For a summary concerning EO 13688 issued by the National Sheriff’s Association click here.
•    Universal Grant Guidance
According to the OMB: The Office of Management and Budget's (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (commonly called "Uniform Guidance") was officially implemented in December 2014 by the Council on Financial Assistance Reform (COFAR). 
View text of 2 C.F.R. 200