[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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