[Federal Register Volume 65, Number 184 (Thursday, September 21, 2000)]
[Proposed Rules]
[Pages 57126-57127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24261]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 550

[BOP-1099-P]
RIN 1120-AA95


Inmate Drug Testing Programs

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons is proposing to revise 
and consolidate its regulations on inmate alcohol testing and urine 
surveillance. This revision is intended to eliminate unnecessary 
regulations and to provide for greater flexibility in the use of drug 
testing technology.

DATES: Comments due by November 20, 2000.

ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 
HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is proposing to 
consolidate its regulations on alcohol testing (28 CFR part 550, 
subpart A) and urine surveillance (28 CFR part 550, subpart D). Current 
regulations on alcohol testing were published in the Federal Register 
on May 20, 1980 (45 FR 33940); current regulations on urine 
surveillance were published in the Federal Register on August 26, 1997 
(62 FR 45292).
    The existence of separate regulations governing alcohol testing and 
urinalysis testing reflects, in part, the different test methods 
traditionally available for detecting alcohol and other drug usage. 
While breathalyzer devices were commonly used in alcohol testing, 
urinalysis was the preferred method for detecting other drug usage. 
Advances in drug testing technology have increased the number of test 
methods suitable for use. The Bureau's regulations on urine 
surveillance need to be adjusted accordingly.
    The Bureau is therefore revising its regulations on alcohol testing 
and urine surveillance as one consolidated regulation on drug testing 
programs. Consolidating these regulations is appropriate not only for 
the sake of eliminating unnecessary regulations but also for the sake 
of consistency with the treatment of alcohol abuse in the Bureau's 
regulations on drug abuse treatment programs (28 CFR part 550, subpart 
F).
    Rather than specify the particular testing methods to be used, the 
revised regulations state that the Warden is to be responsible for 
selecting the method or methods of drug testing from the list of 
approved drug test methods compiled by the Bureau's Central Office. 
Having a compiled list of approved drug test methods provides for 
flexibility in the choice of methods. Documentation as to the validity 
of the tests and instructions for their use are to be maintained by the 
Bureau's Central Office as a matter of internal administrative 
management.
    The current regulations defining refusal to participate are keyed 
solely to urinalysis procedures and are unnecessarily prescriptive, 
citing two hours as to the length of time given to produce the urine 
sample or specifying that staff shall offer the inmate eight ounces of 
water at the start of the two-hour period.
    These provisions are revised to specify that staff supervising the 
drug test are to be the same gender as the inmate being tested if 
supervising the drug test involves an observation of intimate body 
parts or bodily functions (for example, the production of a urine 
sample). Inmates will be subject to disciplinary action in accordance 
with the provisions governing inmate discipline (28 CFR part 541, 
subpart B) if they refuse to participate or test positive for 
prohibited drug use. Refusal to participate can be demonstrated 
verbally or by actions. For example, if an inmate states that he or she 
will not take the test, staff may charge the inmate with Prohibited Act 
Code 110, refusing to provide a urine sample or to take part in other 
drug-abuse testing. Examples of an inmate refusing to participate by 
action include an inmate who tampers with a drug test or who fails to 
provide a urine sample despite being given a reasonable opportunity to 
do so. The Bureau's internal guidance on defining ``reasonable 
opportunity'' retains instructions formerly cited in the regulations as 
to the availability of water (at least eight ounces) and the length of 
time (at least two hours) given to produce a urine sample. Staff are to 
document the circumstances pertaining to the inmate's refusal to 
participate.
    Interested persons may participate in this proposed rulemaking by 
submitting data, views, or arguments in writing to

[[Page 57127]]

the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First 
Street, NW., HOLC Room 754, Washington, DC 20534. Comments received 
during the comment period will be considered before final action is 
taken. Comments received after the expiration of the comment period 
will be considered to the extent practicable. All comments received 
remain on file for public inspection at the above address. The proposed 
rule may be changed in light of the comments received. No oral hearings 
are contemplated.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB.

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 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 the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule 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 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 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 rule is not a major rule as defined by Sec. 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 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.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Sarah Qureshi at the 
address listed above.

List of Subjects in 28 CFR Part 550

    Prisoners.

Kathleen Hawk Sawyer,
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(o), we propose to amend part 550 in 
subchapter C of 28 CFR, chapter V as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 550--DRUG PROGRAMS

    1. The authority citation for 28 CFR part 550 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 
4001, 4042, 4046, 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; 21 U.S.C. 
848; 28 U.S.C. 509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 
U.S.C. Chapter 223); 28 CFR 0.95-0.99.

Subpart B--[Removed and Reserved]

    2. Subpart B, consisting of Sec. 550.10, is removed and reserved.
    3. Subpart D is revised to read as follows:

Subpart D--Inmate Drug Testing Programs

Sec.
550.30   Purpose and scope.
550.31   Procedures.

Subpart D--Inmate Drug Testing Programs


Sec. 550.30  Purpose and scope.

    The Bureau of Prisons maintains a comprehensive surveillance 
program to detect the use of drugs, including alcohol, by inmates. This 
surveillance program includes random sample monitoring, testing of 
individual inmates suspected of using drugs, and testing of individual 
inmates or groups of inmates who are considered to be at risk for using 
drugs.


Sec. 550.31  Procedures.

    (a) Test methods. The Warden is responsible for selecting the 
method or methods of drug testing from the list of approved drug test 
methods compiled by the Bureau's Central Office.
    (b) Test supervision. Staff are responsible for directly 
supervising the drug test. If supervision of the drug test involves 
observation of intimate body parts or bodily functions (for example, 
the production of a urine sample), staff supervising the test must be 
the same gender as the inmate being tested.
    (c) Refusal to participate. An inmate who refuses to participate in 
a drug test is subject to disciplinary action in accordance with 28 CFR 
part 541, subpart B. Refusal to participate can be demonstrated 
verbally or by actions. For example, an inmate who states that he or 
she will not take the test is refusing to participate. Examples of an 
inmate refusing to participate by actions include an inmate who tampers 
with his or her drug test or an inmate who fails to provide a urine 
sample despite being given a reasonable opportunity to do so. Staff are 
to document the circumstances pertaining to the inmate's refusal to 
participate.
    (d) Test results. An inmate testing positive for prohibited drug 
use is subject to disciplinary action in accordance with 28 CFR part 
541, subpart B.

[FR Doc. 00-24261 Filed 9-20-00; 8:45 am]
BILLING CODE 4410-05-P