[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31976]


[Federal Register: December 28, 1994]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2


Paroling, Recommitting, and Supervising Federal Prisoners: 
Controlling Drug Abuse by Federal Parolees

AGENCY: United States Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is amending its regulations in 
order to implement a statutory amendment to 18 U.S.C. 4209 (1976) 
contained in the Violent Crime and Law Enforcement Act of 1994, Public 
Law 103-322 (September 13, 1994). Congress added new provisions that 
require mandatory drug testing for parolees and that prohibit parolees 
from using controlled substances. The new provisions also require 
confirmation of a positive drug test before parole can be revoked, and 
permit the Parole Commission to refrain from instituting parole 
revocation proceedings when a parolee fails a drug test so long as 
other appropriate measures, such as treatment programs, are available. 
These statutory provisions are not expected to require a substantial 
change in current Parole Commission policy and practice.

EFFECTIVE DATE: January 27, 1995.

FOR FURTHER INFORMATION Contact: Pamela A. Posch, Office of General 
Counsel, 5550 Friendship Boulevard, Chevy Chase, Maryland 20815, 
Telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: In Section 20414(d) of the Violent Crime 
Control and Law Enforcement Act of 1994, Public Law 103-322 (September 
13, 1994), Congress added new language to 18 U.S.C. Sec. 4209(a). This 
language pertains exclusively to offenders who are (or will be) serving 
sentences for crimes committed prior to November 1, 1987. 18 U.S.C. 
4209 (1976) pertains to the conditions and limitations which the Parole 
Commission is authorized to impose on prisoners who are released to 
complete their sentences on parole.

    The amendment to 18 U.S.C. 4209(a) which appears in the VCCLEA 
reads as follows:

    In every case, the Commission shall also impose as a condition 
of parole that the parolee pass a drug test prior to release and 
refrain from any unlawful use of a controlled substance and submit 
to at least 2 periodic drug tests (as determined by the Commission) 
for use of a controlled substance. The condition stated in the 
preceding sentence may be ameliorated or suspended by the Commission 
for any individual parolee if it determines that there is good cause 
for doing so. The results of a drug test administered in accordance 
with the provisions of the preceding sentence shall be subject to 
confirmation only if the results are positive, the defendant is 
subject to possible imprisonment for such failure, and either the 
defendant denies the accuracy of such test or there is some other 
reason to question the results of the test. A drug test confirmation 
shall be a urine drug test confirmed using gas chromatography/mass 
spectrometry techniques or such test as the Director of the 
Administrative Office of the United States Courts after consultation 
with the Secretary of Health and Human Services may determine to be 
of equivalent accuracy. The Commission shall consider whether the 
availability of appropriate substance abuse treatment programs, or 
an individual's current or past participation in such programs, 
warrants an exception in accordance with United States Sentencing 
Commission guidelines from the rule of section 4214(f) when 
considering any action against a defendant who fails a drug test.

    The net effect of the statutory amendment is:
    (a) To require mandatory drug testing for every parolee unless the 
Commission finds good cause to suspend that requirement;
    (b) To require the Commission to prohibit the use of controlled 
substances by parolees;
    (c) To require confirmation of a positive drug test before parole 
can be revoked; and
    (d) To require the Commission to institute a revocation proceeding 
against a parolee who fails a drug test unless (1) other appropriate 
measures are available, and (2) the Sentencing Commission's guidelines 
do not provide otherwise.
    After a review of its current regulations and practices with regard 
to drug testing for parolees, and its parole revocation policy in the 
case of parolees who abuse drugs, the Commission has concluded that the 
VCCLEA will not require any significant changes in the way federal 
parolees are supervised and sanctioned for controlled substance abuse. 
The Parole Commission currently follows a ``zero tolerance'' policy 
that prohibits drug use, and emphasizes the need for drug-addicted 
parolees to modify their behavior through appropriate treatment or face 
revocation of parole and return to prison under 18 U.S.C. 4214. The 
following amendments to 28 CFR 2.40 are ordered, however, for the 
purpose of conforming the Commission's regulations to the requirements 
and language of the VCCLEA. The amended version of 28 CFR 2.40 will 
apply to all parolees who presently are, or will be, under parole 
supervision pursuant to 18 U.S.C. 4209.

Executive Order 12866 and Regulatory Flexibility Statement

    The U.S. Parole Commission has determined that this rule is not a 
significant regulatory action for the purposes of Executive Order 
12866, and the rule has therefore not been reviewed by the Office of 
Management and Budget. The rule will not have a significant economic 
impact upon a substantial number of small entities, within the meaning 
of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, probation and parole, 
prisoners.

The Final Rule

    Accordingly, the U.S. Parole Commission makes the following 
amendments to 28 CFR Part 2:

PART 2--[AMENDED]

    1. The authority citation for 28 CFR Part 2 continues to read as 
follows:

    Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).

    2. Section 2.40 is amended by adding the following language to 
paragraph (R):


Sec. 2.40  Conditions of release.

* * * * *
    (R)* * * When considering what action to take with regard to a 
parolee who fails a drug test, the Commission shall consider 
appropriate alternatives to revocation pursuant to 18 U.S.C. 4209(a). 
In no case shall parole be revoked upon the basis of a single, 
unconfirmed positive drug test that is challenged by the parolee, 
without other violations having been found to justify such revocation.
* * * * *
    3. Section 2.40 is amended at paragraph (l)(2) by substituting the 
words ``which shall include at least two periodic tests'' for the words 
``which may include testing'', and by adding the following language:


Sec. 2.40  Conditions of release.

* * * * *
    (l)(1) * * *
    (2) * * * A decision by the Commission not to impose this special 
condition shall constitute good cause for suspension of the drug 
testing requirements of 18 U.S.C. 4209(a). In the event such condition 
is imposed prior to an eligible prisoner's release from prison, any 
grant of parole or reparole shall be contingent upon the prisoner 
passing all pre-release drug tests administered by the U.S. Bureau of 
Prisons.

    Dated: December 19, 1994.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 94-31976 Filed 12-27-94; 8:45 am]
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