[Federal Register Volume 69, Number 227 (Friday, November 26, 2004)]
[Rules and Regulations]
[Pages 68791-68793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26188]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2


Paroling, Recommitting, and Supervising Federal Prisoners: 
Prisoners Serving Sentences Under the United States and District of 
Columbia Codes

AGENCY: Parole Commission, Justice.

ACTION: Final rule.

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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).
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    \1\ The Board's use of a majority-vote procedure was required by 
former DC Code Sec.  24-201.2 (renumbered Sec.  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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    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

[[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\
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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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    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

0
Accordingly, the U.S. Parole Commission is adopting the following 
amendment to 28 CFR Part 2.

PART 2--[AMENDED]

0
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).


0
2. Amend Sec.  2.74 by revising paragraph (c) to read as follows:


Sec.  2.74  Decision of the Commission.

* * * * *
    (c) The Commission shall resolve relevant issues of fact in 
accordance with Sec.  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

[[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 Sec.  2.105(c), shall be based on the 
vote of one Commissioner, except as otherwise provided in this subpart.

0
3. Amend Sec.  2.105 by revising the first sentence of paragraph (c) 
and adding paragraph (g). The revised and added text reads as follows:


Sec.  2.105  Revocation decisions.

* * * * *
    (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 Sec.  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.
[FR Doc. 04-26188 Filed 11-24-04; 8:45 am]
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