Urine Surveillance

SUMMARY: In this document, the Bureau of Prisons is revising its

regulations on the use of urine surveillance to detect and deter

illegal drug use in order to reorganize the provisions and to allow for

the use of discretion by staff in filing an incident report in

instances when the inmate is unwilling to provide a specimen. This

revision is intended to provide for the continued efficient operation

of the institution.

EFFECTIVE DATE: August 26, 1997.

ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,

320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its

regulations on urine surveillance. A final rule on this subject was

published in the Federal Register on October 17, 1988 (53 FR 40687).

Current provisions on the use of urine surveillance to detect and

deter illegal drug use by inmates are contained in Sec. 550.30 (subpart

D). The Bureau is reorganizing these regulations in order to separate

procedural provisions from the statement of the regulation's purpose

and scope. The title of the subpart has been shortened. In addition,

the revised regulations (see new Sec. 550.31(a)) allow for the use of

staff discretion in filing incident reports in instances where the

inmate is unwilling to provide a specimen within two hours of a request

for the specimen. This provision now specifies that staff ordinarily

shall file an incident report. This change is intended to accommodate

unusual circumstances which could result in the inmate's being unable

to produce a specimen (for example, the inmate has a documented medical

or psychological problem, is dehydrated, etc.).

Because this amendment is either editorial in nature or provides

relief with respect to the discretionary filing of an incident report

in certain cases, the Bureau finds good cause for exempting the

provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring

notice of proposed rulemaking, the opportunity for public comment, and

delay in effective date. Members of the public may submit comments

concerning this rule by writing to the previously cited address. These

comments will be considered but will receive no response in the Federal

Register.

The Bureau of Prisons has determined that this rule is not a

significant regulatory action for the purpose of E.O. 12866, and

accordingly this rule was not reviewed by the Office of Management and

Budget. After review of the law and regulations, the Director, Bureau

of Prisons has certified that this rule, for the purpose of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.), does not have a

significant economic impact on a substantial number of small entities,

within the meaning of the Act. Because 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, its economic

impact is limited to the Bureau's appropriated funds.

List of Subjects in 28 CFR Part 550

Prisoners.

Kathleen M. Hawk,

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(p), part 550 in subchapter C of 28

CFR, chapter V is amended 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. 3621, 3622, 3624, 4001, 4042,

4081, 4082 (Repealed in part as to offenses committed on or after

November 1, 1987), 4251-4255, 5006-5024 (repealed October 12, 1984

as to conduct occurring after that date), 5039; 28 U.S.C. 509, 510;

28 CFR 0.95-0.99.

2. Subpart D is revised to read as follows:

Subpart D--Urine Surveillance

Sec.

550.30 Purpose and scope.

550.31 Procedures.

Subpart D--Urine Surveillance

Sec. 550.30 Purpose and scope.

The Warden shall establish programs of urine testing for drug use,

to monitor specific groups or individual inmates who are considered as

high risk for drug use, such as those involved in community activities,

those with a history of drug use, and those inmates specifically

suspected of drug use. Testing shall be performed with frequency

determined by the Warden on at least 50 percent of those inmates who

are involved in community activities. In addition, staff shall randomly

sample each institution's inmate population during each month to test

for drug use.

Sec. 550.31 Procedures.

(a) Staff of the same sex as the inmate tested shall directly

supervise the giving of the urine sample. If an inmate is unwilling to

provide a urine sample within two hours of a request for it, staff

ordinarily shall file an incident report. No waiting period or extra

time need be allowed for an inmate who directly and specifically

refuses to provide a urine sample. To eliminate the possibility of

diluted or adulterated samples, staff shall keep the inmate under

direct visual supervision during this two-hour period, or until a

complete sample is furnished. To assist the inmate in giving the

sample, staff shall offer the inmate eight ounces of water at the

beginning of the two-hour time period. An inmate is presumed to be

unwilling if the inmate fails to provide a urine sample within the

allotted time period. An inmate may rebut this presumption during the

disciplinary process.

(b) Institution staff shall determine whether a justifiable reason

exists, (e.g., use of prescribed medication) for any positive urine

test result. If the inmate's urine test shows a positive test result

for the presence of drugs which cannot be justified, staff shall file

an incident report.

[FR Doc. 97-22651 Filed 8-25-97; 8:45 am]

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