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###### Department of Justice

###### Parole Commission

          - 28 CFR Part 2

# AGENCY:

Parole Commission, Justice.

# ACTION:

Final rule.

# SUMMARY:

The U.S. Parole Commission is adding a procedural rule to provide that parole revocation and reparole decisions resulting from a revocation hearing for a District of Columbia Code offender may be administratively appealed. With this change, the Commission is also amending several rules to permit the initial decisions in DC parole revocation cases to be made by one Commissioner. Extending an appeal procedure to revoked DC parolees provides an avenue for these parolees to seek administrative correction of alleged errors in revocation proceedings and to present their views before a second Commissioner. The rule changes further the Commission's goal of greater uniformity in decision-making procedures for all cases within the Commission's jurisdiction.

# DATES:

*Effective Date:*                         December 27, 2004.                    

# FOR FURTHER INFORMATION CONTACT:

Office of General Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815, telephone (301) 492-5959. Questions about this publication are welcome, but inquiries concerning individual cases cannot be answered over the telephone.

# SUPPLEMENTARY INFORMATION:

                    Since the Parole Commission assumed the revocation functions of the former District of Columbia Board of Parole in August 2000 under the National Capital Revitalization and Self-Government Improvement Act of 1997, Public Law 105-33, the Commission has required that parole revocation and reparole decisions for District of Columbia offenders be made by the concurrence of two Commissioners. The Commission adopted this requirement to replicate the voting procedures of the former DC Board, which made its decisions on the basis of a majority of the quorum of Board members (                    *i.e.*                    , two out of three).[1]                                          The Board did not provide for an appeal of any of its decisions, and, when the Commission took on DC revocation functions, neither did the Commission. (The Commission is required by statute to afford an appeal procedure to U.S. Code offenders.) In response to recommendations that the Commission allow DC offenders to submit appeals, the Commission has explained that staff resources were not sufficient to justify increasing the agency's workload by allowing appeals for DC offenders, and that the two-vote requirement was an acceptable substitute for an appeal procedure. See 65 FR 45885, 45886 (July 26, 2000).                

                    Last year the Commission began modifying its procedures for post-hearing voting and appeals in DC cases. The Commission promulgated a rule permitting appeals of revocation decisions for DC supervised releasees, and made a corresponding amendment that allowed the initial revocation decision for these releasees to be made by one Commissioner.                     *See*68 FR 41696-41714 (July 15, 2003). Now the Commission is adopting similar changes for DC offenders who have had parole revocation hearings. DC parolees will now have a formal avenue for seeking administrative correction of alleged errors in revocation proceedings. By extending an appeal procedure to DC parole violators, the Commission will provide for cumulative review of the case by two Commissioners for those offenders who file an appeal. Under the Commission's long-standing practice, an appeal is, whenever possible, reviewed by a Commissioner who did not participate in the decision under review.                     *See*28 CFR 2.26(b)(1). For appeals from revoked DC parolees, the Commission will employ the same policies and practices that the Commission identified in the publication of the rule granting an appeal procedure for revoked DC supervised releasees.                     *See*68 FR 41698.                

                    In adding an appeal procedure for revoked DC parolees, the Commission must also ensure that the initial dispositions in these cases continue to be made in a timely manner. The                           ( print page 68792)                        Commission is particularly vigilant in ensuring continued compliance with the 86-day time period for making revocation decisions for DC parolees arrested and held within the DC metropolitan area. The Commission promulgated the rule on this time limit under a consent decree that resolved class action litigation brought against the Commission regarding significant delays in the handling of DC revocation cases in the early months of the Commission's assumption of revocation functions. Over FY 2004, the number for all revocation dispositions for DC offenders increased 32% from the previous fiscal year. The Commission must be careful in apportioning its workload among the Commissioners so as to avoid violations of decision-making time limits. Therefore, in conjunction with the grant of an administrative appeal, the Commission is adopting a one-vote requirement for cases in which the Commissioner agrees with the examiner panel's recommended decisions on whether to revoke parole and to grant reparole to a DC offender. Consistent with the Commission's traditional practice in federal cases, two Commissioners must still concur in order to make a decision in those cases in which the Commissioner who first reviews the case disagrees with the panel recommendation reached by the hearing examiner and the executive hearing examiner.[2] 

                    With these changes, the Commission's post-hearing voting procedures and appeal procedures for DC parole revocation and supervised release revocation are now identical. This result is consistent with the Commission's goal of achieving greater uniformity in its procedures for all cases under the Commission's jurisdiction. But the Commission is limiting the amendments described in this publication to the procedures that follow revocation hearings for DC parolees (including mandatory releasees), whether the hearing is a local, institutional, or dispositional revocation hearing. At this time, the Commission is not making any changes for DC offenders who have received parole release hearings, including hearings on possible reparole that are subsequent to an earlier revocation and reparole decision (                    *e.g.*, a rescission or special reconsideration hearing). The Commission is continuing to employ an incremental approach in making appeals available to DC offenders and in modifying the agency's voting procedures. The Commission wants to see the results of the changes made by these amendments before making any further modifications. Budget constraints and the availability of sufficient staff and Commissioners to handle the appeals are factors that affect the Commission's ability to expand or maintain an appeal procedure.                     *See*68 FR 41698-99.                

## Implementation

Because these rule changes are only rules of procedure, the Commission is promulgating the changes as final rules without the need for notice and public comment. In July 2003, similar rules for DC supervised release cases were published, along with other rules, for an extended period of notice and comment and no comment was received. The rule amendments are made effective thirty days after the date of publication. The new rules shall be employed for any DC parolee: (1) Who has a revocation hearing on or after the effective date; or (2) who had a revocation hearing before the effective date, but the case has not been voted on by a Commissioner as of the effective date. If a DC parole revocation case has been voted on by a Commissioner before the effective date, and is before another Commissioner for a vote, the case shall be processed under the two-vote requirement under the former rule and no appeal may be submitted. An appeal may be submitted in any case in which the Commissioner who first voted on the case signed the order on or after the effective date.

The single vote procedure shall be used for decisions made under the expedited revocation procedure. A parolee who accepts an expedited offer waives the opportunity to appeal the decisions identified in the offer.

## Executive Order 12866

The U.S. Parole Commission has determined that this final rule does not constitute a significant rule within the meaning of Executive Order 12866.

## Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

## Regulatory Flexibility Act

The final 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), and is deemed by the Commission to be a rule of agency practice that does not substantially affect the rights or obligations of non-agency parties pursuant to Section 804(3)(c) of the Congressional Review Act.

## Unfunded Mandates Reform Act of 1995

This rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

## 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 the ability of United States-based companies to compete with foreign-based companies.

# List of Subjects in 28 CFR Part 2

      - Administrative practice and procedure
      - Prisoners
      - Probation and parole

## The Final Rule

Accordingly, the U.S. Parole Commission is adopting the following amendment 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. Amend § 2.74 by revising paragraph (c) to read as follows: 

§ 2.74 

* * * * *

                            (c) The Commission shall resolve relevant issues of fact in accordance with § 2.19(c). Decisions granting or denying parole shall be based on the concurrence of two Commissioners, except that three Commissioner votes shall be required if the decision differs from the decision recommended by the examiner panel by more than six months. A decision releasing a parolee                                   ( print page 68793)                                from active supervision shall also be based on the concurrence of two Commissioners. All other decisions, including decisions on revocation and reparole made pursuant to § 2.105(c), shall be based on the vote of one Commissioner, except as otherwise provided in this subpart.                        

3. Amend § 2.105 by revising the first sentence of paragraph (c) and adding paragraph (g). The revised and added text reads as follows: 

§ 2.105 

* * * * *

(c) Decisions under this section shall be made by one Commissioner, except that a decision to override an examiner panel recommendation shall require the concurrence of two Commissioners. * * *

* * * * *

(g) A parolee may appeal a decision made under this section to revoke parole, to grant or deny reparole, or to modify the conditions of release. The provisions of § 2.26 on the time limits for filing and deciding the appeal, the grounds for appeal, the format of the appeal, the limits regarding the submission of exhibits, and voting requirements apply to an appeal submitted under this paragraph.

Dated: November 18, 2004.

Edward F. Reilly, Jr.,

Chairman, U.S. Parole Commission.

# Footnotes

1.                             The Board's use of a majority-vote procedure was required by former DC Code § 24-201.2 (renumbered § 24-401.02), but this law and others regarding the creation, powers, and rulemaking authority of the Board were abolished by section 11231(b) of the Revitalization Act.                    
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2.                             In employing a two-vote requirement in such cases, the Commission seeks to allay the concern that one Commissioner may reject the panel recommendation and make a different decision without adhering to the collective policy of the Commission.                    
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[FR Doc. 04-26188 Filed 11-24-04; 8:45 am]

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